union security agreements in public employment

Cornell Law ReviewVolume 60Issue 2 January 1975 Article 2

Union Security Agreements in Public EmploymentPatricia N. Blair

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Recommended CitationPatricia N. Blair, Union Security Agreements in Public Employment, 60 Cornell L. Rev. 183 (1975)Available at: http://scholarship.law.cornell.edu/clr/vol60/iss2/2

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UNION SECURITY AGREEMENTS INPUBLIC EMPLOYMENT

Patricia N. Blairt

The number of employees on the public payroll has more thandoubled in the past two decades.' Public employee union member-ship has exhibited a commensurate growth record. 2 The recogni-tion by federal and state governments of the right of publicemployees to bargain collectively has increased correspondingly.Although such uniform national legislation as the 1935 NationalLabor Relations Act (NLRA)3 and the Railway Labor Act of 1926(RLA),4 which guarantee the right to bargain collectively in theprivate sector, has no counterpart in the area of public employ-ment, both the federal government and a substantial majority ofthe states have acted to secure collective bargaining rights for theirrespective public employees.

At the federal level, Executive Order Number 11,4915 and thePostal Reorganization Act of 19706 guarantee United Statesemployees7 the right to bargain collectively. Thirty-six states8 also

t Assistant Dean and Associate Professor of Law, Wayne State University Law School.B.S. 1965, J.D. 1968, Indiana University School of Law; LL.M. 1969, University of MichiganSchool of Law. This article was submitted by the author in partial fulfillment of therequirements for the S.J.D. degree, University of Michigan School of Law.

The author wishes to thank Professor LeRoy L. Lamborn, a good friend and colleague,for his editorial assistance on the manuscript of this Article.

I U.S. BUREAU OF THE CENSUS, DEP'T OF COMMERCE, STATISTICAL ABSTRACT OF THEUNITED STATES 433 (94th ed. 1973).

2 For a discussion of this growth in public employment and in public employee unionmembership, as well as a discussion of the development of collective bargaining in the publicservice, see Blair, State Legislative Control over the Conditions of Public Employment: Defining theScope of Collective Bargaining for State and Municipal Employees, 26 VAND. L. REv. 1-8 (1973).

3 National Labor Relations Act, 29 U.S.C. §§ 141-87 (1970).4 Railway Labor Act, 45 U.S.C. §§ 151-63 (1970).5 3 C.F.R. 191 (Comp. 1969), 5 U.S.C. § 7301 (1970), as amended, 3 C.F.R. 254 (1974).

Executive Order Number 11,491 superseded Executive Order Number 10,988 (3 C.F.R. 521(Comp. 1959-1963), 5 U.S.C. § 631 (1964)), issued by President John F. Kennedy on January17, 1962, which first extended the right to bargain collectively to federal employees.

6 39 U.S.C. §§ 1201-09 (1970).7 Executive Order Number 11,491 applies only to employees in the executive branch of

the federal government.8 ALA. CODE ANN. tit. 37, § 450(3) (Cum. Supp. 1973) (firemen); ALASKA STAT.

§ 14.20.560 (1971) (teachers); id. § 23.40.070 (1972) (public employees generally); CAL.EDUC. CODE § 13082 (West 1969) (teachers); CAL. Gov'T CODE § 3505 (West Supp. 1974)(municipal employees); id. § 3525 (state employees); CAL. LABOR CODE § 1962 (West 1971)

(firemen); CAL. PUB. UTIL. CODE § 70120 (West 1973) (transit workers); CONN. GE. STAT.REv. § 7-468 (1972) (municipal employees); id. § I0-I53(d) (teachers); DEL. CODE ANN. tit. 2,

184 CORNELL LAW REVIEW [Vol. 60:183

have enacted legislation permitting or mandating collective bar-gaining in the public sector. These laws vary considerably in scopefrom comprehensive, NLRA-type statutes to statutes which merelyauthorize collective bargaining by public employees.9

For states enacting collective bargaining legislation, the NLRAserves as a useful model. 10 That Act broadly defines the scope of§ 1613 (Cum. Supp. 1970); id. tit. 19, § 802 (transportation workers); id. § 1302 (publicemployees generally); id. tit. 14, § 4001 (public school employees); FLA. STAT. ANN.§ 447.20-.35 (Supp. 1974) (firemen); id. § 839.221 (1965) (public employees); HAWAIIREv. STAT. § 89-3 (Supp. 1973) (public employees generally); IDAHO CODE § 44-1802 (Supp.1973) (firemen); ILL. ANN. STAT. ch. 111 2/3, § 328a (Smith-Hurd 1966) (transit workers);

IND. CODE §§ 20-7.5-1-1-7.5-1-14 (Supp. 1974) (teachers); KAN. STAT. ANN. § 72-5414 (1972)(teachers); id. § 75-4328 (Supp. 1973) (public employees except teachers); KY. REv. STAT.ANN. § 78.470 (Supp. 1973) (county policemen); id. § 345.030 (firemen); LA. REv. STAT.ANN. § 23.890 (Supp. 1973) (transit workers); ME. REv. STAT. ANN. tit. 26, § 965 (1964)(municipal employees); MD. ANN. CODE art. 64B, § 37(b) (1972) (transit workers); Id. art.77, § 160 (Supp. 1973) (teachers); MASS. GEN. LAWS ANN. ch. 150E (Supp. 1973) (allpublic employees); MICH. STAT. ANN. § 17.455(9) (1968) (public employees); MINN. STAT.ANN. § 179.65 (Supp. 1974) (public employees generally); Mo. ANN. STAT. § 105.510(Vernon Cum. Supp. 1974) (all public employees except police, deputy sheriffs, andteachers); MONT. R v. CODES ANN. § 75-6119 (Supp. 1971) (teachers); id. § 59-1604(Supp. 1974) (all public employees, except public school employees and nurses); NEB.REv. STAT. § 79-1287 (1971) (teachers); NEv. REv. STAT. § 288.150 (1973) (local governmentemployees); N.H. REv. STAT. ANN. § 31:3 (1971) (municipal employees); id. § 98-C:2 (Supp.1973) (state employees); Id. § 105-B:3 (Supp. 1973) (policemen); N.J. STAT. ANN.§ 34:13A-5.3 (Supp. 1974) (all public employees); N.Y. Civ. SERV. LAW § 203 (McKinney1973) (all public employees); N.D. CENT. CODE § 15-38.1-08 (1971) (teachers); OKLA. STAT.

ANN. tit. 11, § 548.4 (Supp. 1973) (firemen, policemen, and municipal employees); id. tit. 70,§ 509.2 (1972) (teachers); ORE. REV. STAT. § 243.730 (1971) (all public employees exceptteachers); id. § 342.450 (teachers); PA. STAT. ANN. tit. 43, § 217.1 (Supp. 1974) (police andfiremen); id. § 1101.401 (all public employees except police, firemen, and transit employees);id. tit. 53, § 39951 (transit workers); R.I. GEN. LAWS ANN. § 28-9.1-6 (Supp. 1973) (firemen);id. § 28-9.2-6 (policemen); id. § 28-9.3-4 (1969) (teachers); id. § 28-9.4-3 (municipal em-ployees); id. § 36-11-1 (Supp. 1973) (state employees); S.D. COMPILED LAWS ANN. § 3-18-2(Supp. 1973) (all public employees); TEx. Riv. Civ. STAT. art. 5154c-1 (Supp. 1974) (firemenand policemen); VT. STAT. ANN. tit. 3, § 903 (Supp. 1974) (state employees); i. tit. 16, § 1982(teachers); id. tit. 21, § 1721 (municipal employees); WASH. REv. CODE ANN. § 28A.72.030(1970) (teachers); id. § 41.56.010 (1972) (municipal and state employees); id. § 53.18.020(Supp. 1974) (port district employees); Wis. STAT. ANN. § 66.94(29) (1965) (transit workers);id. § 111.70(2) (1974) (municipal employees); id. § 111.82 (state employees); Wyo. STAT.ANN. § 27-266 (1967) (firemen).

9 As this author noted in a previous article,[s]ome states have a single statute that either authorizes or requires all state publicemployers to engage in collective bargaining. Other states divide their publicemployers into categories, such as school boards or fire departments, and byseparate legislation authorize or require each different group to engage in collectivebargaining. Still other states have enacted single public employer collective bargain-ing acts that authorize or require only a limited group of public employers toengage in collective bargaining.

Blair, supra note 2, at 3 n. 17. For a discussion of the various kinds of statutes, see id. at 3-5.10 See, e.g., CONN. GEN. STAT. REV. § 10-153 (Supp. 1973); MIcH. STAT. ANN. § 17.455

(1968); N.Y. Civ. SERV. LAW § 200-14 (McKinney 1973); PA. STAT. ANN. tit. 43, § 1101.401(Supp. 1974).

PUBLIC SECTOR UNION SECURITY

negotiable subjects as "wages, hours, and other terms and condi-tions of employment,"11 a phrase that has been construed in anexpansive manner by both the National Labor Relations Board(NLRB) and the courts in cases dealing with private sector indus-trial relations.1 2 In drafting public employee bargaining laws, statelegislatures must, therefore, confront the problem of determiningthe extent to which these laws should permit-or require-publicemployees and their employers to bargain collectively over substan-tially the same subjects now negotiable in the private sector underthe NLRA. One of the most important of these subjects is unionsecurity. Whether union security should be Within the scope ofcollective bargaining for public employees has been the subject ofconsiderable disagreement.1 3

I

UNION SECURITY

As the phrase has come to be defined in the private sector,"union security" encompasses any agreement between an employerand a union acting as exclusive bargaining agent that requiresevery employee in the bargaining unit, as a condition of employ-ment, to be a union member or to pay a specified amount to theunion for its bargaining services.14 The five basic forms of unionsecurity that have developed over the years in the private sector arethe closed shop,15 the union shop,1 6 the agency shop, 17 the mainte-

11 29 U.S.C. § 158(d) (1970). Once raised at the bargaining table, subjects within thisdefinition are mandatorily bargainable, which means that the parties must negotiate overthem until an impasse is reached. In the private sector, subjects not within this definition arenegotiable with the mutual consent of labor and management. See NLRB v. Borg-WarnerCorp., 356 U.S. 342 (1958).

12 E.g., Fibreboard Paper Prods. Corp. v. NLRB, 379 U.S. 203 (1964); AmericanSmelting & Ref. Co. v. NLRB, 406 F.2d 552 (9th Cir. 1969), cert. denied, 395 U.S. 935 (1969);Dolly Madison Indus., 182 N.L.R.B. No. 147, 74 L.R.R.M. 1230 (1970).

3 See, e.g., Address by D. Silvergleid, President of the National Postal Union, to theFederal Labor Relations Council, Oct. 6, 1970, in 370 Gov'T EMPL. REL. REP. A-6 (Oct. 12,1970); notes 28 & 161 infra.

14 See generally R. SMrTH & L. MERRIFIELD, LABOR RELATIONS LAW: CASES ANDMATERIALS 974-79 (5th ed. 1974).

"5 In a closed shop, the employer and union agree that the employer will hire onlyunion members and that all employees so hired will remain union members as a condition ofemployment. See id. at 974.

1" In a union shop, the employer and union agree that all employees must join theunion within a prescribed time after their initial hiring and remain union members as acondition of employment. See id. at 975.

17 In an agency shop, the employer and union agree that employees are free to refrainfrom union membership, but that all nonunion employees must pay to the union an amountequal to union dues and fees as a condition of employment. See id.

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nance of membership agreement,1 8 and the fair share agreement.1 9

In the private sector all forms of union security were man-datorily bargainable under the NLRA until 1947,20 at which timethe Act was amended to prohibit the closed shop 21 because of itsnumerous abuses by unions.22 The union shop, agency shop,maintenance of membership agreement, and fair share agreementremain mandatorily bargainable, 23 however, although anotheramendment introduced into the NLRA in 1947 expressly validatesstate legislation prohibiting agreements requiring union member-ship as a condition of employment. 24 Similarly, although the RLA

Is In a maintenance of membership agreement, the employer and union agree that

employees are free to refrain from union membership, but that employees who elect to jointhe union must retain their union membership until the expiration of the collectiveagreement, as a condition of employment. See id. at 975-76.

19 In a fair share agreement, the employer and union agree that employees are free torefrain from union membership, but that all employees must pay the union a prorata shareof bargaining costs as a condition of employment or that union members must pay uniondues and fees, while nonunion members must pay only their prorata share of bargainingcosts. See ORE. REV. STAT. § 243.650(10) (1973).

20 In Public Serv. Co. of Colorado, 89 N.L.R.B. 418 (1950), the NLRB indicated thatthe legislative intent of the Wagner Act was to permit any relationship between employerand employee then allowed under state law-induding the closed shop. See also AlgomaPlywood & Veneer Co. v. Wisconsin Employment Relations Bd., 336 U.S. 301, 307 (1949).Although these decisions were rendered after the NLRA was amended to prohibit the closedshop, they were made on the basis of the unamended Act.

21 The 1935 version of the NLRA, known as the Wagner Act (ch. 372, 49 Stat. 449(1935)), stated: "Provided, That nothing in this Act . . . shall preclude an employer frommaking an agreement with a labor organization ... to require as a condition of employmentmembership therein." Id. § 8(3). In 1947 Congress enacted the Labor-ManagementRelations Act, or Taft-Hartley Act (ch. 120, 61 Stat. 136 (1947)), which added the followingitalicized language to the existing proviso:

Provided, That nothing in this Act... shall preclude an employer from making anagreement with a labor organization ... to require as a condition of employmentmembership therein on or after the thirtieth day following the beginning of such employ-ment or the effective date of such agreement, whichever is the later ....

Id. § 8(a)(3), amending 29 U.S.C. § 158(a)(3) (1946) (codified at 29 U.S.C. § 158(a)(3) (1970)).In NLRB v. General Motors Corp., 373 U.S. 734 (1963), the Supreme Court construed thatadded language to forbid the dosed shop.

22 In its report on the amendment, the Senate Committee noted:Numerous examples were presented to the committee of the way union leaders

have used closed-shop devices as a method of depriving employees of their jobs,and in some cases a means of securing a livelihood in their trade or calling, forpurely capricious reasons.

S. REP. No. 105, 80th Cong., 1st Sess. 6 (1947).23 American Seating Co., 98 N.L.R.B. 800 (1952). See also NLRB v. General Motors

Corp., 373 U.S. 734 (1963).24 Thus,

[n]othing in this Act shall be construed as authorizing the execution or applicationof agreements requiring membership in a labor organization as a condition ofemployment in any State or Territory in which such execution or application isprohibited by State or Territorial law.

Act of June 23, 1947, ch. 120, § 14(b), 61 Stat. 151, amending 29 U.S.C. § 164 (1946)(codified at 29 U.S.C. § 164(b) (1970)).


was amended in 1934 to preclude all forms of union security, 25 a1951 amendment permits bargaining over the same type of unionsecurity provisions that are bargainable under the NLRA. 26 As aresult, eighty percent of the collective agreements negotiated todaypursuant to the NLRA and RLA contain either a union shop,agency shop, maintenance of membership, or fair shareprovision.27

II

THE MERIT PRINCIPLE ARGUMENT

In spite of the acceptance of the principle of union security inthe private sector, various groups vehemently oppose its introduc-tion into the area of public employment. 28 One argument againstauthorizing bargaining in the public sector over union securitydevices of the type bargainable under the NLRA and RLA is thatconditioning a person's continued employment on union member-ship or the payment of a sum of money to a union is contrary tothe merit principle which now prevails in most governments-federal, state, and local.29 That is, actual or constructive unionmembership has no relationship to the employee's successful per-formance of his job and, therefore, should not be a basis fordischarge.

This argument against the propriety of union security devicesof the type permitted in the private sector evinces a basic misun-derstanding of the merit principle. The phrase "merit principle" issimply a popular description for the general notion underlyinglegislation, most of which was enacted initially in the early 1900's,requiring positions in a government's appointive service to be filledon the basis of an applicant's ability or "merit" and prohibiting agovernmental employer from discharging employees on racial,religious, or political grounds.3 0 The merit principle is today

25 Act of June 21, 1934, ch. 691, § 2, 48 Stat. 1185, amending Railway Labor Act, ch.

347, § 2, 44 Stat. 577 (codified at 45 U.S.C. 151(a)-52 (1970)).26 Act of Jan. 10, 1951, ch.. 1220, § 2, 64 Stat. 1238,-amending Railway Labor Act § 2, 45

U.S.C. § 152 (1946) (codified at 45 U.S.C. § 152 (1970)).27 L. REYNOLDS, LABOR ECONOMICS AND LABOR RELATIONS 194 (4th ed. 1964).28 See, e.g., Advisory Comm'n on Intergovernmental Relations, Conclusions and Recom-

mendations on Labor Relations, 342 GOV'T EMPLOYEE REL. REP., March 30, 1970, at E-1;NATIONAL RIGHT TO WORK Comm., REPORT: A BASIC AND PREcious RIGHT (1973); W.VOSLOO, COLLECTIVE BARGAINING IN THE UNITED STATES FEDERAL CIVIL SERVICE (1966).

2s See, e.g., H. KAPLAN, THE LAW OF THE CIVIL SERVICE 331 (1958); TASK FORCE,

REPORT: A POLICY FOR EMPLOYEE-MANAGEMENT COOPERATION IN THE FEDERAL SERVICE

(1961).30 Prior to 1883 job appointments in the public sector generally were made on the basis

19751


merely one component of a larger complex of laws that regulatevarious aspects of a government's relations with its employees andare enforced by a commission operating independently of theimmediate government employer.31 Those laws and the commis-sion constitute what is frequently referred to as the civil servicesystem of employment.

One important function of the civil service system is theregulation of discharges in order to protect employees from arbi-trary action by their employer and to insure that the govern-ment does not lose competent employees without adequatejustification.3 2 But the civil service system has always recognizedthat employees who are totally competent in their job performancemay nevertheless be discharged if the grounds for dischargefurther a legitimate public policy. 3 Therefore, if a legitimatepublic policy is served by conditioning continued government

of patronage, as the recognized reward for loyal service to a victorious political party. SeeFriedrich, The Rise and Decline of the Spoils Tradition, 189 AM. ACAD. OF POL. & SOC. SC.ANNALS 10, 13 (1937). The interest of the people in having only qualified personnel on thepublic payroll, however, was recognized by statute in 1883 when Congress passed thePendleton Act (Act of Jan. 16, 1883, ch. 27, 22 Stat. 403 (codified in scattered sections of 5U.S.C.)), which required that appointive positions in the federal service, with certainexceptions, be filled on the basis of an applicant's ability or merit, measured by open,competitive examinations. 5 U.S.C. § 3304 (1970). The Act also established the Civil ServiceCommission, which is charged with overseeing the implementation of the Act's provisions.Id. § 1101.

Since the passage of the Pendleton Act, 31 states and most municipalities have enactedsimilar laws, adopting what is now popularly described as the merit principle. COUNCIL OF

STATE GOVERNMENTS, BOOK OF THE STATES 176-79 (1952). Most of those state and local meritlaws, however, as well as the federal Pendleton Act, exempt a myriad of governmentalappointive positions from the operation of the merit principle. See, e.g., 5 U.S.C. §§ 3302,3324 (1970). The reasons for exempting certain positions from a merit requirement may bepurely political in nature, although more frequently they stem from a belief that the abilitiesnecessary for the adequate performance of some jobs cannot be measured by examinationsor that some jobs require no special skills for their adequate performance.

31 Civil Service Commission members are ordinarily appointed by a government's chiefexecutive officer. Most commissions have either four or six members, only half of whom canbe from the same political party. A. SAGESER, FIRST Two DECADES OF THE PENDLETONAcT-A STUDY OF CIVIL SERVICE REFORM (1935).

32 For discussion of the functions of civil service commissions, see W. CARPENTER, THEUNFINISHED BUSINESS OF CIVIL SERVICE REFORM (1952); COMM'N OF INQUIRY ON PUBLIG

SERVICE PERSONNEL, PROBLEMS OF THE AMERICAN PUBLIC SERVICE (1935); A. SAGESER; supra

note 31; Kaplan, Civil Service Seventy-Five Years, 47 NAT'L MUN. REV. 220 (1958).11 See, e.g., N.Y. CIv. SERV. LAW § 50(4)(d) (McKinney Supp. 1974). That statute

provides for the discharge of civil service employees for the conviction of any crime, eventhough the particular crime does not affect job performance. Other civil service acts requiremunicipal employees to reside within the city for which they work as a condition ofcontinued employment, although residency does not affect job performance. See, e.g., MASS.ANN. LAWS ch. 31, § 48A (1973). It should be noted, however, that laws prohibiting civilservice employment of convicts have encountered constitutional challenges recently. See, e.g.,Butts v. Nichols, 381 F. Supp. 573 (S.D. Iowa 1974).


employment on union membership or on the payment of a bar-gaining fee to the union, union security devices are not contrary tothe merit principle or civil service system.

Moreover, the same reasons that justify legislation authorizingagreements between unions and private employers for the dis-charge of employees who fail to contribute at least some money tothe support of their bargaining agent apply equally well where agovernment employer is involved. These reasons are two-fold.First, under the predominant type of state public employee bar-gaining legislation,34 as well as under the NLRA and RLA,35 aunion selected as bargaining agent by the majority of workers inthe appropriate unit must represent all employees in the unit-union and nonunion alike-in a nondiscriminatory manner. Un-less the employees in the unit who remain nonunion can becompelled to contribute to the costs of union representation, whichmay be considerable, the nonunion employees will enjoy thebenefits of the bargaining process while union members are forcedto assume the entire burden of paying for it.36 Second, since theunion members in a bargaining unit may be unable to financeadequately the negotiation and administration of a collective bar-gaining agreement without some monetary contribution from thenonunionists, the resulting financial instability of the duly-electedbargaining agent may jeopardize meaningful collective bargainingby encouraging the union to assume an unnecessarily militantattitude toward management in an effort to rally more employeesto its financial support. This instability also encourages the em-ployer to be obstinate, in hopes of forcing a favorable agreementfrom a weak union.

The desire to encourage financial stability in unions acting asexclusive bargaining agents, coupled with the desire to eliminatethe patent unfairness that exists when a union is required by law torepresent nonunion employees without any remuneration, led tothe NLRA and RLA provisions authorizing bargaining over unionsecurity devices in the private sector.37 These same policies are

" See CONN. GEN. STAT. REV. § 7-468(b), (c) (1972); HAWAII REV. STAT. § 89-8 (Supp.1973); MicH. STAT. ANN. § 17.455(11) (1968); N.J. STAT. ANN. § 34:13-A-5.3 (Supp. 1974).

35 29 U.S.C. § 159(a) (1970); 45 U.S.C. § 152 (1970). For a recognition of the duty offair representation under the NLRA, see Syres v. Oil Workers, Local 23, 350 U.S. 892(1955). See also Steele v. Louisville & Nashville R.R., 323 U.S. 192 (1944) (recognition of thatduty under RLA).

" The classic denunciation of such "free-riders" has been made on several occasions bySamuel Gompers. See, e.g., Gompers, Talks on Labor, 12 AM. FEDERATONIST 221, 222 (1905).

37 96 CONG. REc. 16,279 (1950) (remarks of Senator Hill); S. REP. No. 105, 80th Cong.,

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equally applicable in public employment, where laws require aunion selected by the majority of workers in an appropriate unit torepresent all employees in the unit regardless of their unionaffiliation. At the least, these policies support legislative authoriza-tion of bargaining over union security devices that require allpublic employees in the unit to bear their fair share of bargainingexpenses, in what is termed a "fair share agreement."

In the private sector, the NLRA and RLA, however, authorizemore than fair share agreements. Under these acts the parties maynegotiate "agency shops," which require all nonunion employees inthe bargaining unit to pay a sum of money equivalent to uniondues, fees, and assessments as a condition of employment, eventhough that sum may be more than the employee's fair share ofbargaining costs.3 8 The NLRA and RLA also permit union shops,which require all employees in the unit to become union members,and maintenance of membership agreements, which require em-ployees who elect to become union members to retain their unionmembership until expiration of the collective bargainingagreement.3 9 As is the case with the agency shop, under the unionshop and maintenance of membership agreement an employercannot discharge an employee other than for his failure to payunion dues, fees, and assessments. 40 Because enforceable member-ship obligations of the union shop and maintenance of member-ship agreement are limited by the NLRA and RLA to the paymentof union dues, fees, and assessments, the union shop, maintenanceof membership agreement, and agency shop have become thepractical equivalent of one another in the private sector.4 1

III

FIRST, FIFTH, AND FOURTEENTH AMENDMENT CONSIDERATIONS

The opponents of public sector union security arrangementsincrease in both vociferousness and number when that phrase is

1st Sess. 6-7 (1947). As Senator Hill put it, "[tlhe question ... is whether those who enjoy thefruits and the benefits of the unions should make a fair contribution to the support of theunions." 96 CONG. REc. 16,279 (1950).

38 29 U.S.C. § 158(a)(3) (1970); 45 U.S.C. § 152 (1970).39 29 U.S.C. § 158(a)(3) (1970); 45 U.S.C. § 152 (1970).40 Under the NLRA (29 U.S.C. § 158(a)(3) (1970)), the enforceable obligations of union

membership do not include the payment of assessments, but instead are limited to thepayment of "periodic dues and the initiation fees." Under the RLA (45 U.S.C. § 152 (1970)),the enforceable obligations of union membership are limited to the payment of "periodicdues, initiation fees, and assessments (not including fines and penalties)."

41 See NLRB v. General Motors Corp., 373 U.S. 734, 741 (1963); Retail Clerks Local1625 v. Schermerhorn, 375 U.S. 96, 99 (1963).

[Vol. 60:183


not limited to the fair share agreement, but, instead, is expandedto encompass the union shop, agency shop, and maintenance ofmembership agreement approved for the private sector by theNLRA and RLA. That same opposition also surfaces periodically inthe private sector in spite of the long entrenchment of thoseagreements.42 One reason for the continuing opposition in theprivate sector and the attempt to prevent the expansion of unionsecurity devices into public employment is the possibility that unionshop, agency shop, and maintenance of membership agreementsmay infringe an objecting employee's freedom of speech andassociation as protected by the first and fourteenth amendments tothe United States Constitution, and deprive him of his right towork as protected by the due process clauses of the fifth andfourteenth amendments. Indeed, even the more limited fair shareagreement has been opposed on these grounds. 43

The constitutionality of union security devices was first ex-amined by the United States Supreme Court in Railway Employees'Department v. Hanson.4 4 After finding that union security agree-ments negotiated pursuant to congressional authorization in theRLA involved the requisite governmental action for invoking thetenets of the Constitution,45 the Court sustained those agreementsagainst attacks leveled under the first and fifth amendments. Itheld that a union shop agreement negotiated under the RLA,which limits the enforceable obligations of union membership tothe payment of "dues, initiation fees and assessments, '' 46 on its faceneither deprived objecting employees of their right to work asprotected by the due process clause of the fifth amendment, norinfringed their right of free speech or freedom of association asguaranteed by the first amendment. The Court, however, carefullylimited its holding, stating:

[I]f the exaction of union dues, initiation fees, or assessmentsis used as a cover for forcing ideological conformity or otheraction in contravention of the First Amendment, this judgmentwill not prejudice the decision in that case.... We only hold thatthe requirement for financial support of the collective-bargaining

42 See, e.g., NATIONAL RIGHT TO WORK COMM., REPORT, supra note 28.43 Id.44 351 U.S. 225 (1956) (nonunion employee challenge of union shop agreement on first

and fifth amendment grounds).4' The Court found the enactment of the federal statute authorizing union shop

agreements to constitute "the governmental action on which the Constitution operates,though it takes a private agreement to invoke the federal sanction." Id. at 232.

46 45 U.S.C. § 152 (1970).

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agency by all who receive the benefits of its work ... does notviolate either the First or the Fifth Amendments. 47

The Court also noted that the "financial support" which it found tobe constitutionally unobjectionable in Hanson "relates . . . to thework of the union in the realm of collective bargaining. '48 Hence,in Hanson, the Court gave its approval to union security devicesunder which the only enforceable obligation of union membershipis the payment of union dues, fees, and assessments and underwhich all sums collected are utilized to defray the costs of collectivebargaining.

Under union shop, agency shop, and maintenance of member-ship agreements, however, sums collected from employees areoften in excess of what is necessary to defray the costs of collectivebargaining, with the additional moneys being utilized to furtherother union activities. Those union activities are often political innature, such as lobbying for legislative programs and supportingcandidates for elective offices, or they may be nonpolitical innature, but unrelated to the collective bargaining process, such ascontributions to employee sick funds.49 Indeed, it is only the fairshare agreement that limits employees' payments to their union tothe exact amount necessary to cover the costs of collective bargain-ing, with each employee paying his fair share of these costs.50

The constitutional permissibility of using moneys collectedunder union security agreements to support political causes whichare contrary to the views of dissenting employees was questioned inInternational Association of Machinists v. Street.5' In Street, the em-ployees alleged before a Georgia trial court that the money each wasforced to pay under a union shop agreement negotiated pursuantto the RLA was used in substantial part to support political cam-paigns, economic ideologies, and legislative programs opposed bythem. The trial court found that the various political expendituresmade by the union were not germane to the collective bargainingprocess and that the enforcement of the union shop agreementviolated the United States Constitution to the extent the fundsexacted from employees under the agreement were used to finance

47 351 U.S. at 238.48 Id at 235.49 For a discussion of the types of activities that'unions might finance through union

dues and fees, see Hopfl, The Agency Shop Question, 49 CORNELL L.Q. 478, 480 (1964).5" This limitation is inherent in the definition of a fair share agreement. See note 19

supra.51 367 U.S. 740 (1961).

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political activities opposed to the views of the dissenting employees.The Supreme Court of Georgia affirmed.52

On appeal, the majority of the United States Supreme Courtcircumvented all federal constitutional issues by construing therelevant section of the RLA53 "to deny the unions, over anemployee's objection, the power to use his exacted funds to sup-port political causes which he opposes. 54 Four Justices, however,refused to ignore the first amendment implications of the chal-lenged expenditures. Justice Frankfurter, whom Justice Harlanjoined in a dissenting opinion, found that the first amendmentrights of objecting employees are not infringed by a union's ex-pending funds collected under a union security agreement tofinance political activities. 55 Justice Black reached a contrary con-clusion in his dissenting opinion, agreeing with the minority em-ployees that such use of "extorted" funds was contrary to the dictatesof the first amendment.5 6 Justice Douglas, although concurring inthe majority opinion, adopted the same reasoning as Justice Blackon the first amendment implications of the challengedexpenditures.57

52 215 Ga. 27, 108 S.E.2d 796 (1959).

53 45 U.S.C. § 152 (1970); see note 58 infra.54 367 U.S. at 768-69.55 According to Justice Frankfurter,[t]he gist of the complaint here is that the expenditure of a portion of mandatoryfunds for political objectives denies free speech-the right to speak or to remainsilent-to members who oppose, against the constituted authority of union desires,this use of their union dues. No one's desire or power to speak his mind is checkedor curbed. The individual member may express his views in any public or privateforum as freely as he could before the union collected his dues.

Id. at 806 (dissenting opinion).56 There can be no doubt that the federally sanctioned union-shop contract here,as it actually works, takes a part of the earnings of some men and turns it over toothers, who spend a substantial part of the funds so received in efforts to thwart thepolitical, economic and ideological hopes of those whose money has been forcedfrom them under authority of law. This injects federal compulsion into the politicaland ideological processes, a result which 1 have supposed everyone would agree theFirst Amendment was particularly intended to prevent. And it makes no differenceif, as is urged, political and legislative activities are helpful adjuncts of collectivebargaining....

[T]he First Amendment bars use of dues extorted from an employee by law forthe promotion of causes, doctrines and laws that unions generally favor to help theunions, as well as any other political purposes.

ML at 789-91 (dissenting opinion).5 Id. at 775-79.

This means that membership in a group cannot be conditioned on theindividual's acceptance of the group's philosophy. Otherwise, First Amendmentrights are required to be exchanged for the group's attitude, philosophy, or politics.I do not see how that is permissible under the Constitution. Since neither Congressnor the state legislatures can abridge those rights, they cannot grant the power to

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It is unlikely that the first amendment issues raised by politicalexpenditures of forced contributions under union security agree-ments will be resolved in the private sector. The issue under theRLA has been mooted by Street, and the NLRA, which governsmost other private employees, contains language authorizing unionsecurity agreements that is almost identical to that of the RLA.58

Since the Supreme Court interpreted the RLA as prohibitingpolitical expenditures, thereby avoiding all first amendment ques-tions, it would be almost certain to place a similar interpretation onthat language in the NLRA.59

The first amendment problems created by political expendi-tures from funds collected under union security agreements can-not be avoided in the public sector, however, because of the lack offederal legislation susceptible of an interpretation like that placedon the RLA by the Supreme Court in Street, and because so manyof these agreements are now being negotiated covering publicemployees.60 If the Court were to adopt the Black-Douglas viewthat the first amendment bars the use of funds obtained underunion security agreements to support political activities, over anemployee's objection, the negative impact on the collective bargain-ing process would be far greater where public employee unions areinvolved than it would be in the case of private employee unions.61

In the private sector, the primary determinant of whether aunion will attain its demands on conditions of employment is thewillingness of management to make concessions, and not priorpolitical decisions made by legislators and executive officials out-side the collective bargaining process. Instead, legislation and ex-

private groups to abridge them. As I read the First Amendment, it forbids anyabridgment by government whether directly or indirectly.

Id. at 777 (concurring opinion).58 29 U.S.C. § 158(a)(3) (1970). Like the RLA, the NLRA forbids discrimination against

a nonunion employee if membership was not available to that employee on the same termsas to other employees, or membership has been denied that employee on grounds otherthan nonpayment of dues. See 29 U.S.C. § 158(a)(3) (1970); 45 U.S.C. § 152 (1970).

59 The Ninth Circuit Court of Appeals construed the NLRA in precisely this fashion inSeay v. McDonnell Douglas Corp., 427 F.2d 996, 1000, 1003-04 (9th Cir. 1970). Accord, Reidv. McDonnell Douglas Corp., 443 F.2d 408, 411 (10th Cir. 1971).

60 In 1972, for example, the Michigan Education Association reported that it hadagency shop clauses in about one-half of its 530 contracts with local school boards. 512 GOV'T

EMPLOYEE REL. REP., July 16, 1973, at B-1.61 Public employees at the federal level are already subject to certain legal restraints on

their political activities under the Hatch Act (5 U.S.C. § 7324 (1970)), which provides thatan employee of an executive agency may not: "(1) use his official authority or influence forthe purpose of interfering with or affecting the result of an election; or (2) take an activepart in political management or in political campaigns." Id.

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ecutive decisions generally regulate only the manner in whichcollective bargaining must be conducted and rarely have any directimpact on the terms finally included in a collective agreement. Incontrast, in the public sector unions are forced to bargain withemployers who are themselves public officials and who are desig-nated under public employment bargaining laws to represent thegovernment in the collective bargaining process. Generally thepublic officials so designated are the heads of various governmentagencies. 62 Under some state public employment bargaining laws,agency heads actually have the authority to negotiate bindingcollective bargaining agreements covering the employees in theirrespective agencies. 63 Nevertheless, the terms of these collectiveagreements are directly affected by prior "political" decisions, suchas the approval of an agency budget or the allocation of taxmoneys, made by the government's legislative body or by its chiefexecutive official outside the collective bargaining process. 64 If thefirst amendment is construed to prohibit public employee unionsfrom expending, over an employee's objection, money collectedunder union security agreements to finance lobbying and othersimilar activities aimed at promoting decisions on such "political"matters favorable to their bargaining demands, the unions' abilityto achieve their demands when collective bargaining actually occurswould be severely limited.

Further, under some public employment bargaining laws, theofficials who represent the government in collective bargaining donot possess the authority to conclude binding collective bargainingagreements. Instead, the collective agreements negotiated by thoseofficials with the relevant unions are only tentative in nature andmust subsequently be presented to the government's legislativebody for its final approval or rejection. 65 Although lobbying alegislative body traditionally has been deemed to be a purelypolitical activity, in this instance lobbying is not only germane tothe collective bargaining process, but it is also an integral part of it.Indeed, if "political" is defined as "pertaining to... the conduct of

62 See, e.g., DEL. CODE ANN. tit. 19, § 1309 (Supp. 1970); R.I. GEN. LAWs ANN.

§ 28-9.1-5 (Supp. 1973).c3 See statutes cited note 62 supra.64 For an analysis of the relationship between governmental budget-making and the

collective bargaining process, see Summers, Public Employee Bargaining: A Political Perspective,83 YALE L.J. 1156, 1172-76 (1974).

" See, e.g., KAN. STAT. ANN. § 75-4330 (Supp. 197-3); Wis. STAT. ANN. § 111.81(16)(1974).

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government, '66 the entire collective bargaining process in the pub-lic sector is political in nature, since its outcome will determine therelationship of a government to its employees and, at least wherefinancial matters are negotiated, will likely determine the- fundsthat will be available for all other governmental programs. Hence,under the Black-Douglas view that the first amendment bars theuse of funds obtained under union security agreements to financepolitical activities despite an employee's objection, union securityagreements would automatically be unconstitutional in the publicsector, since the primary purpose of a union security agreement isto force objecting employees to contribute to the costs of collectivebargaining-a political activity.

Yet it is exceedingly unlikely that such a result was everforeseen by Black or Douglas. Implicit in Hanson, a decision writtenby Douglas, was a recognition of the societal interests in furtheringcollective bargaining and the need for devices to finance itadequately.67 The courts are almost certain to continue to recog-nize that need where public employees are involved. The possiblefirst amendment problems created by union security devices, there-fore, cannot be resolved through the political expenditure-collective bargaining expenditure dichotomy suggested by Blackand Douglas, because political overtones permeate the entire bar-gaining process in the public sector. Instead, when the activities ofa union are absolutely essential to meaningful collective bargainingin the public sector, a court is likely to sustain against constitutionalattack the financing of these activities through compulsory uniondues notwithstanding the political overtones, just as the SupremeCourt, in Hanson, upheld the use of compulsory dues to defray thecosts of collective bargaining in the private sector.

On the other hand, even in the public sector certain types ofactivities carried on by unions are so traditionally and purelypolitical in nature and so tangentially related to the collectivebargaining process that the financing of these activities throughcompulsory union dues should be viewed as an infringement offirst amendment rights. These activities would include campaigncontributions and the support of legislative programs that are notan integral part of the collective bargaining process. For a govern-ment, which is an actual party to a union security agreement in thepublic sector, to extract funds from its employees to be used byunions for such purposes runs counter to one of the basic tenets of

66 WEBSTER'S NEW INTERNATIONAL DICTIONARY 1909 (2d ed. 1934)."67 351 U.S. at 233-34.

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the first amendment-that an individual is free to speak or not tospeak on matters that are purely political in nature. To respond, asJustice Frankfurter did in his dissent in Street, that a union securityagreement does not prevent one from asserting his own ideas68

ignores the fact that by forcing one to contribute financial supportto political views contrary to his own, such an agreement compelsone to speak on political issues.

The Supreme Court has never discussed the constitutionalityof union security agreements that condition initial or continuingemployment on full union membership, which would entail notonly payment of union dues and fees, but also adherence to otherunion rules governing employee conduct with respect to manage-ment and the union organization itself. 69 Union security agree-ments of that type, which include the closed shop, true union shop,and maintenance of membership agreement,70 on their face raiseserious freedom of association questions under the first amend-ment. Since those agreements are now invalid under the NLRAand RLA,7 which govern most private sector employees, anydispute over their constitutionality is likely to arise in the publicsector under recently enacted public employment bargaining laws.As already noted, the first amendment problems are magnified inthe public sector because a government agency is an actual party tothe agreement.

When a person's ability to obtain or retain employment isconditioned on his assuming the full obligations of union member-ship, his freedom to associate or not to associate with whom hechooses is obviously impaired. That impairment may not violatethe right to freedom of association as guaranteed by the first

68 See note 55 supra.

69 One common union rule requires all members to attend regularly scheduled unionmeetings. Another requires all members to participate in strikes that are authorized by themajority of union members. Strikes by public employees, however, are illegal at the federallevel and in all states except Hawaii, Pennsylvania, and Vermont, which recognize a limitedright to strike by public employees when the strike will not endanger the public health orsafety. See HAWAII REv. STAT. § 89-12 (Supp. 1973); PA. STAT. tit. 43, § 1101.1003 (Supp.1974); VT. STAT. ANN. tit. 21, § 1730(3) (Supp. 1974). For a general discussion of union rulesand discipline, see Summers, Legal Limitations on Union Discipline, 64 HARV. L. REv. 1049(1951).

70 In either a true union shop or a maintenance of membership agreement, themembership requirement upon which employment is conditioned is actual union member-ship, with its full obligations. In the union shop and maintenance of membership agreementauthorized under the NLRA, the obligations of union membership upon which employmentmay be conditioned are expressly limited to the payment of union dues and fees (29 U.S.C.§ 158(a)(3) (1970)), and under the RLA to the payment of union dues, fees, and assess-ments. 45 U.S.C. § 152 (1970); see note 40 supra.

71 29 U.S.C. § 158(a)(3) (1970); 45 U.S.C. § 152 (1970).

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amendment, however, if there is a compelling state interest tojustify it. 72

One possible justification for closed shop, union shop, andmaintenance of membership agreements is that by requiring allemployees in the bargaining unit to abide by union rules as acondition of employment, the union can exert extensive controlover employee conduct during the bargaining process. Such con-trol can be used to ensure that bargaining demands authorized bya majority of employees in the bargaining unit will be supported byall employees in the unit, thereby contributing to a union'snegotiating strength. That strength is essential to meaningful par-ticipation by employees in collective bargaining, a societal interestrecognized by the Supreme Court in Hanson.73 When organizedlabor was in its infancy, the societal interest in encouraging thedevelopment of strong unions to facilitate meaningful collectivebargaining may have been sufficiently compelling to justify stateaction forcing objecting employees to become full participatingmembers in majority unions. Today, however, unions are potentforces at the bargaining table in both the public and privatesectors.7 4 In fact, most of the unions representing public employeesare large, well-established private sector unions that have assumedrepresentation in the public sector.75 Hence, the state interest inencouraging the development of strong unions can no longer bedeemed sufficiently compelling 76 to justify the impairment of theright to freedom of association that necessarily results from closedshop, union shop, and maintenance of membership agreements.

72 The Supreme Court, on occasion, has sustained serious invasions of first amendment

rights when the competing state interest was sufficiently compelling. For an analysis of theSupreme Court decisions that balance the claims of individuals under the first amendmentagainst the claims of the community, see Brett, Free Speech, Supreme-Court Style: A View fromOverseas, 46 TExAs L. REv. 668, 672-77 (1968); Emerson, Toward a General Theory of the FirstAmendment, 72 YALE L.J. 877 (1963); Frantz, The First Amendment in the Balance, 71 YALE L.J.1424 (1962).

73 Railway Employee's Dep't v. Hanson, 351 U.S. 225 (1956).74 See S. Ru. No. 187, 86th Cong., 1st Sess. 5-6 (1959). The Senate Committee on

Labor and Public Welfare declared that[a] strong independent labor movement is a vital part of American institutions ....The problems of this now large and relatively strong institution are not unlike thedifficulties faced by other groups in American society which aspire to live by thesame basic principles and values within their group as they hold ideal for the wholecommunity.

Id.

75 See J. STIEBER, PUBLIC EMPLOYEE UNIONISM: STRUCTuRE, GRowrH, POLICY 3-6 (1973).76 For an examination of the types of state interests that have been deemed sufficiently

compelling to justify serious impairments in first amendment rights, see Emerson, supra note72, at 928-49; Frantz, supra note 72, at 1426-27, 1429.

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Private sector experience with the closed shop, union shop,and maintenance of membership agreement also suggests thatthese agreements should not be authorized in the public sectoreven if they do not violate the first amendment. Union abuses ofsuch agreements under the NLRA were so invidious that a 1947amendment outlawed the dosed shop and limited the enforceableobligations of union membership under the union shop andmaintenance of membership agreement to the payment of uniondues and fees.77 It is likely that the same abuses would occur in thepublic sector if these agreements were permitted.

IV

THE IMPAIRMENT OF CONTRACTS CLAUSE

Union security agreements of the type permitted in the privatesector raise an additional issue of federal constitutional significancewhen applied to tenured public school teachers. Thirty-seven statesnow have teacher tenure laws which prohibit state agencies andlocal school boards from discharging teachers who have fulfilledthe requirements for tenure set forth in these laws, except forcauses specifically enumerated.78 Some of these state tenure lawscould be, and have been, construed to give teachers meeting therequirements for tenure a contractual right to continued employ-ment that can be terminated only for the causes expressly stated inthe law at the time the tenure contract was created. 79 A statelegislature may be unable to amend that type of tenure law toauthorize discharge for failure to abide by a union security agree-ment because tenured teachers whose contracts were in existenceprior to the passage of any such amendment may be protectedfrom discharge by the impairment of contracts clause of the UnitedStates Constitution."

0

Certainly the enforcement of a union security agreementwould impair the contract rights of teachers whose tenure contractsarose prior to legislative authorization of union security. The issue,

7 Labor-Management Relations Act (Taft-Hartley Act), ch. 120, § 101, 61 Stat. 140(1947), amending 29 U.S.C. § 158(a)(3) (1946) (codified at 29 U.S.C. § 158(a)(3) (1970)). TheRailway Labor Act (45 U.S.C. § 152 (1970)) imposes a similar limitation on union securitydevices.

78 M. MOSKOW, TACHERS AND UNIONS 77 (1966).79 See, e.g., Indiana ex reL Anderson v. Brand, 303 U.S. 95 (1938); text beginning at

note 86 infra.So U.S. CONsT. art. 1, § 10. That provision forbids any state to "pass any . .. Law

impairing the Obligation of Contracts."

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however, of whether that impairment is significant enough tocontravene the contract clause requires an examination of the casesconstruing this clause.

One of the most significant cases involving the contract clausesince the turn of the century is Home Building & Loan Association v.Blaisdell.8' At issue in Blaisdell was the Minnesota MortgageMoratorium Law82 enacted during the -Depression. The law au-thorized state courts to postpone real property foreclosure salesand to extend the period of redemption from foreclosure "for suchadditional time as the court may deem just and equitable," but inno event beyond May 31, 1935.83 In upholding the MoratoriumLaw against an attack under the contract clause, the Court reliedon three factors: (1) the law was an appropriate exercise of thestate's police power; (2) it only temporarily impaired contractrights; and (3) it was a reasonable attempt by the legislature toalleviate an extreme economic emergency. The Court stated: "Anemergency existed in Minnesota which furnished a proper occasionfor the exercise of the reserved [police] power of the State toprotect the vital interests of the community. '84

If, applying the Blaisdell analysis, a contractual impairment isvalid only when it results from a reasonable attempt by stateofficials to alleviate an emergency and only if the impairment istemporary, then the impairment of tenure contracts through theenforcement of union security agreements would violate the con-tract clause. Clearly, any impairment of a tenure contract thatresults from the enforcement of a union security agreement wouldbe permanent. 85 Moreover, it is difficult to envision any type ofstate emergency that would reasonably require legislative authori-zation of union security agreements.

In Indiana ex rel. Anderson v. Brand,86 however, the SupremeCourt suggested in dictum that a less stringent standard is applica-ble in assessing the constitutionality of contractual impairmentsunder the contract clause. That decision, rendered four years afterBlaisdell, involved the impairment of a teacher tenure contractunder the Indiana Tenure Act.8 7 Adopted in 1927, that Act

81 290 U.S. 398 (1934).82 Ch. 339, [1933) Minn. Laws 514.

'3 Id. part 1, § 4.84 290 U.S. at 444.85 Since the enforcement of the union security agreements would result in discharge of

the employee, the impairment of rights would certainly be permanent.86 303 U.S. 95 (1938).87 Ch. 97, §§ 1-6 [1927) Ind. Acts. 259.

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provided that teachers who served under contract for five or moresuccessive years and thereafter entered into a contract for furtherservices with the same school system would become permanentteachers. The Act further provided that if a contract of a perma-nent teacher expired, it would nevertheless be deemed to continuein effect until a new contract was negotiated or until cancelled forany of the reasons specified in the Tenure Act. The Tenure Actpermitted cancellation of a permanent contract for "incompetency,insubordination . . . neglect of duty, immorality, justifiable de-crease in the number of teaching positions or other good and justcause . . ... 88 Subsequently, the Indiana Legislature deleted thesection of the Tenure Act that protected teachers in townshipschool districts. The plaintiff in Brand, a teacher in a townshipschool, had attained permanent status before the Tenure Act wasamended, but was threatened with discharge after the amendmenton grounds not mentioned in the 1927 Act. 9

The Supreme Court, in examining the Tenure Act, found thatthe word "contract" appeared twenty-five times and that the tenorof the Act as a whole indicated this word was used in its normallegal sense. The Court concluded that, although state legislaturesare normally free to repeal or amend their own statutes at anytime, the Indiana Tenure Act contained provisions which, whenacted upon by teachers, became a permanent contract between theteachers and the state within the protection of the impairment ofcontracts clause of the Constitution. Thus, plaintiff could be dis-charged only on the grounds stated in the Act at the time she metits requirements for tenure.90

The Court noted by way of dicta, however, that every contractis made subject to the implied condition that its fulfillment "may befrustrated by a proper exercise of the police power" and that "inorder to have this effect, the exercise of the power must be for anend which is in fact public and the means. adopted must bereasonably adapted to that end." 91 Although the Court foundthat state action designed to aid in the efficient administration ofpublic schools is a proper exercise of the police power, it neverthe-less ruled that the amendment of the Tenure Act, which had theeffect of authorizing discharges on grounds other than thosespecified in the original Act, was not a valid exercise of the police

88 Id. § 2.

9 303 U.S. at 97; id at 110 (Black, J., dissenting).90 303 U.S. at 106.91 Id. at 109.

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power. The Court reached that conclusion on the basis of theprovision in the earlier Act permitting discharge for "good and justcause." 92 The Court reasoned that every valid public purposewhich conceivably could be furthered by discharging tenuredteachers was covered by this language. Hence, any amendment ofthe Act that permitted discharge on other grounds could not be an"exercise of the police power for the attainment of ends to whichits exercise may properly be directed. 93

Under the reasoning implicit in Brand, union security deviceswould be permissible even though their enforcement permanentlyimpaired tenure contracts and even though no emergency existed,provided they were deemed a proper exercise of the state policepower. Moreover, legislative authorization of union security inpublic employment is likely to be viewed as an appropriate exerciseof the state police power. Although earlier decisions construed thepolice power to be limited to the protection of the public health,safety, and morals,94 today the police power concept has beenexpanded to encompass also the general welfare.95 The phrase"general welfare" includes every state action with almost any con-ceivable public purpose 96 and, as the Court stated in Brand, in-cludes action designed to facilitate the efficient administration ofpublic schools.

Union security agreements should be deemed appropriatestate action to further the efficient administration of public schoolsin light of the Supreme Court's decision in Railway Employees'Department v. Hanson.97 In Hanson, the Court held that congres-sional authorization of union shops for railroad employees wasappropriate action under the commerce clause to promote indus-trial peace along the arteries of interstate commerce. 98 Similarreasoning supports the conclusion that state authorization of union

92 Ch. 97, § 2, (1927] lnd. Acts 259; see 303 U.S. at 103.93 303 U.S. at 109.94 See, e.g., Lawton v. Steele, 152 U.S. 133, 136 (1894); Barbier v. Connolly, 113 U.S. 27,

31 (1885); Boston Beer Co. v. Massachusetts, 97 U.S. 25, 33 (1878); Hannibal & St. JosephR.R. v. Husen, 95 U.S. 465, 471 (1878).

9' See, e.g., Berman v. Parker, 348 U.S. 26, 32 (1954); Day-Brite Lighting, inc. v.Missouri, 342 U.S. 421, 424 (1952). In Berman, the Court noted that "[p]ublic safety, publichealth, morality, peace and quiet, law and order . . . are some of the more conspicuousexamples of the traditional application of the police power .... Yet they merely illustrate thescope of the power and do not delimit it." 348 U.S. at 32 (emphasis added).

96 3 R. POUND, JURISPRUDENCE 296, 305, 311, 315 (1959); B. SCHWARTZ, A COMMENTARY

ON THE CONSTITUTION OF THE UNITED STATES: THE RIGHTS OF PROPERTY 42-44 (1965).97 351 U.S. 225 (1956); see notes 47-49 and accompanying text supra.98 351 U.S. at 233; see note 45 supra.

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security agreements for teachers would promote peace in publicschools, thereby qualifying as an appropriate exercise of the statepolice power facilitating the efficient administration of publicschools.

Thus the Blaisdell restriction on the impairment of contracts,as modified by Brand, would permit the enforcement of unionsecurity agreements against teachers whose tenure contracts aroseprior to legislative authorization of union security. A more recentSupreme Court decision, however, indicates that although the statecan exercise its police power to permanently impair contract rightsin the absence of an emergency, there are restrictions on such anexercise of the police power which were not stated in Brand.

In City of El Paso v. Simmons,9 the Court, relying on Blaisdell,permitted Texas to modify permanently its own obligations undera contract to sell public land. At an early date, Texas had enacted alaw authorizing the sale of public land on long term contracts for asmall down payment of the principal and an annual payment ofprincipal and interest. 100 Under that law, the purchaser or hisvendees could reinstate the purchaser's rights to the land after aforfeiture for nonpayment of interest, by paying the delinquentinterest at any future time if no rights of third parties had inter-vened. Subsequently, Texas amended the law to restrict the rightof reinstatement to the last purchaser from the state or hisvendees' 01 and to require that this right be exercised within fiveyears from the date of forfeiture. 0 2

In upholding the amended statute against a challenge leveledunder the contract clause, the Court emphasized the state's interestin restoring confidence in the stability of land titles that the earlierlaw had undermined. It also found that "the promise of reinstate-ment . . .was not the central undertaking of the seller nor theprimary consideration for the buyer's undertaking."' 0 3 The Courtdid not suggest, however, that the public lack of confidence in landtitles had risen to the level of an emergency, as it had with respectto mortgages in Blaisdell. Instead, the Court merely noted that thestate had a vital interest in the efficient administration of publiclands and in the stability of land titles that the amended statute wasattempting to effectuate. Thus, under El Paso, a state can perma-

9 379 U.S. 497 (1965).100 Ch. 47, § 11, [1895] Tex. Gen. Laws; ch. 129, art. 4218f, [1897] Tex. Gen. Laws.101 Ch. 59, § 2, [1951] Tex. Gen. & Spec. Laws.102 Ch. 191, § 3, [1941] Tex. Gen. & Spec. Laws.103 379 U.S. at 514.

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nently impair contract rights through any valid exercise of policepower, even though this exercise is not directed at alleviating anemergency, subject to the qualification not stated in Brand that theimpairment does not involve a central undertaking of the contract.

One of the state's central undertakings in a tenure contract, orin any employment contract, is its commitment not to terminateemployment except on the grounds stated in the contract. Hence,the enforcement of a union security agreement against teacherswhose preexisting contracts did not provide for discharge on thatground would seem to contravene a central undertaking of theiremployment contracts. It follows, therefore, that even under thereasoning of El Paso, union security agreements may violate thecontract clause when they are enforced against teachers whosetenure contracts came into existence prior to legislative authoriza-tion of union security.

In Ohison v. Phillips,10 4 however, a three judge district courtconstrued the El Paso decision to permit the discharge of tenuredteachers and other teachers under contract with the state of Col-orado on grounds not mentioned in their employment contracts.Colorado had enacted a law prescribing loyalty oaths for allteachers in public schools, 10 5 including those teachers alreadyunder contract with the state. Teachers who refused to subscribe tothe oath were to be discharged.

In upholding the law against a challenge that it impairedpreexisting contract rights, the court, citing El Paso, reasoned thata contractual impairment is not unconstitutional if insubstantialwhen balanced against a legitimate state interest. Without furtheranalysis, the court concluded that any impairment of the teachers'employment contracts resulting from the loyalty oath law wasinsubstantial when balanced against the legitimate state interest inthe loyalty of teachers.1 0 6

It is difficult to perceive on what basis the court could con-clude that discharging teachers on grounds not stated in theiremployment contracts is an "insubstantial" impairment of theircontract rights. Discharging employees on grounds other thanthose set forth in their employment contracts would appear to be aserious infringement. Such an infringement is clearly distinguish-able from one that merely limits the time in which contractualrights must be asserted and the number of persons who may assertthose rights, as was the case in El Paso.

104 304 F. Supp. 1152 (D. Colo. 1969), aff'd mem., 397 U.S. 317 (1970).105 COLO. REV. STAT. ANN. §§ 123-17-6, -17-7, -17-8 (1964).106 304 F. Supp. at 1156.

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Further, in El Paso, the Supreme Court, in ruling on theconstitutionality of the contractual impairment before it, did notpurport to balance the substantiality of the contractual impairmentagainst the state interest involved,' 0 7 as the three judge districtcourt did in Ohison. If the El Paso decision is read in conjunctionwith Blaisdell and Brand, however, a balancing test may be appro-priate. It is possible to construe the three cases to mean that thestate may impair minor contractual undertakings through anyproper exercise of its police power, but that impairments in thecentral undertakings of contracts are valid only when they resultfrom an exercise of the state police power reasonably directed atalleviating an emergency.' 0 8 Under this analysis, the constitutional-ity of a contractual impairment depends on the severity of theimpairment and the urgency of the state interest being served.Consequently, the test for determining the constitutionality of acontractual impairment under the contract clause would be similarto the test for determining the constitutionality of an impairmentof a fundamental right under the due process and equal protectionclauses. An impairment of a fundamental right is constitutionallypermissible only when it can be justified by a compelling stateinterest. 09

Yet even under a balancing test, union security agreements

107 Justice Black, however, in a dissenting opinion, chastised the majority for employing

what he characterized as a balancing test in reaching its decision:I have previously had a number of occasions to dissent from judgments of thisCourt balancing away the First Amendment's unequivocally guaranteed rights offree speech, press, assembly and petition. In this case I am compelled to dissentfrom the Court's balancing away the plain guarantee of Art. I, § 10, that "No stateshall... pass any ... Law impairing the Obligation of Contracts ..... a balancingwhich results in the state of Texas' taking a man's private property for public usewithout compensation ....

379 U.S. at 517. He concluded his dissent by reiterating his view that the majority's approachwas "just another example of the delusiveness of calling 'balancing' a 'test.' " Id. at 532.Another federal district court also found that under El Paso the proper standard fordetermining the constitutionality of a contractual impairment "when distilled to its essence is. . . a balancing test." Cuyahoga Housing Auth. v. Cleveland, 342 F. Supp. 250, 254 (E.D.Ohio 1972), aff'd, 474 F.2d 1102 (6th Cir. 1973).

108 The Supreme Court, however, did not expressly mention a balancing test inreaching its decisions in Blaisdell, Brand, and El Paso. Moreover, only in El Paso did the Courtdistinguish between minor contractual impairments and impairments in central undertak-ings of the contract. Yet a balancing of interests test is one possible way to reconcile theseeming conflict among those decisions, as Justice Black suggested in his dissent in El Paso.See note 107 supra.

109 See, e.g., Williams v. Rhodes, 393 U.S. 23 (1968). For a detailed discussion of whatconstitutes a fundamental right and an examination of decisions sustaining impairments offundamental rights under a compelling state interest standard, see Karst, Invidious Discrimi-nation: Justice Douglas and the Return of the "Natural Law-Due-Process Formula," 16 U.C.L.A.L.REv. 716 (1969); 82 HARV. L. REv. 1065, 1120-31, 1169-90 (1969).

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would violate the contract clause when enforced against teacherswhose tenure contracts arose prior to legislative authorization ofunion security. The enforcement of such agreements impairs acentral undertaking of the tenure contract, which under a balanc-ing test would require either a state emergency or, at the least, acompelling state interest, to justify the impairment. But, as alreadynoted, it is impossible to envision any type of state emergency thatwould reasonably require legislative authorization of unionsecurity. 110 And, assuming that a compelling state interest wouldjustify the impairment, it is nevertheless unlikely that the state'sinterest in eliminating free riders through the authorization ofunion security rises to the level of a compelling state interest.11'

Additionally, it does not appear that the court in OhIsonactually did balance the state interest in the loyalty of teachersagainst the severity of the contractual impairment in reaching itsdecision. Instead, the basis for the OhIson court's holding seems tohave been that the state can impair even the central undertakingsof contracts through any valid exercise of police power, as theSupreme Court had suggested earlier in Brand."' Indeed, at onepoint in its decision, the court stated that "[a]s long as this reservedpower is exercised for a public end . . . the power may not berestricted by individual contractual obligations."" 13

The First Circuit Court of Appeals, however, rejected this viewin Fornaris v. Ridge Tool Co.' " In Fornaris, the Puerto Rico legisla-ture had enacted a Dealer's Contract Law which provided that adealer's contract with a manufacturer was renewable indefinitely atthe option of the dealer, regardless of provisions for termination ofthe dealership in the contract. 1 5 Subsequently, defendant man-ufacturer terminated its contract with plaintiff dealer in accor-dance with the terms of the contract, which antedated the Dealer'sContract Law. Defendant manufacturer asserted that the Dealer'sContract Law was unconstitutional under the contract clause be-cause enforcement of the law would impair its preexisting contractrights with the dealer. The court of appeals indicated that the

110 See notes 84-103 and accompanying text supra.

A compelling state interest is more than merely desirable social policy. For ananalysis of decisions that discuss the components of a "compelling" state interest, see Karst,supra note 109, at 718-20; 82 HARV. L. REV. 1065, 1087-1131 (1969); note 109 andaccompanying text supra.

12 See notes 86-96 and accompanying text supra.113 304 F. Supp. at 1156.

114 423 F.2d 563 (1st Cir.), rev'd on other grounds, 400 U.S. 41 (1970).

11 P.R. LAws ANN. tit. 10, § 278a (Supp. 1968).

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impairment of contracts clause might not have any bearing on thecase because Puerto Rico is not a state.' 6 The court, however, didfind that the due process clause of the fifth amendment wasapplicable. It further held that when the issue under the dueprocess clause is the constitutionality of a contractual impairment,the standard to be utilized in evaluating the permissibility of theimpairment is the same standard applicable under the contractclause. Relying on the El Paso decision, the court concluded thatthe Dealer's Contract Law resulted in an unconstitutional impair-ment of the manufacturer's contract rights because the law severelyaltered the basic undertaking of the parties to the contract. Inreaching that conclusion, the court did not balance the state in-terest being advanced by the Dealer's Contract Law against theseverity of the contractual impairment, nor did it construe El Pasoas inviting such a balancing. 17

Given the few decisions involving the contract clause in recentyears and the conflicting standards for its application that arepossible under relevant decisions, it is difficult to predict whetherunion security agreements will be held to violate the contract clausewhen their enforcement infringes preexisting contract rights. Ifthe appropriate standard for determining the constitutionality of acontractual impairment is one that requires a balancing of theseriousness of the impairment against the urgency of the stateinterest, or that recognizes the validity of only minor contractualimpairments, then union security agreements would violate thecontract clause when enforced against teachers whose tenure con-tracts arose prior to legislative authorization of union securityagreements. On the other hand, if the appropriate standard is onethat recognizes the validity of any contractual impairment resultingfrom an appropriate exercise of the state police power, then unionsecurity agreements would not contravene the contract clause evenwhen their enforcement infringed preexisting contract rights.

In many states, however, even a very restrictive interpretationof the contract clause would not prevent the discharge of tenuredteachers for failing to abide by the terms of a union securityagreement. That is because only a few state tenure laws actuallyconfer contractual rights to continued) employment on teachersfulfilling the requirements set forth in the tenure laws.' 18 Instead,

116 See note 80 supra.117 The court merely cited El Paso, Blaisdell, andother cases as authority for its decision;

it did not mention the "balancing test" at all. 423 F.2d at 567.11 See, e.g., Indiana ex reL Anderson v. Brand, 303 U.S. 95 (1938).

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the majority of tenure laws have been construed as merely limitingthe powers of local school boards to discharge tenured teachers,rather than as conferring contractual rights." 9 As such, these lawsmay be amended or repealed at any time without generatingproblems under the contract clause.

Moreover, many tenure laws that could be construed as grant-ing contractual rights to continued employment provide for thedischarge of tenured teachers for "good or just cause." 120 It isarguable that the failure to abide by a union security agreement,after such an agreement has been authorized by the state legisla-ture, would constitute "good or just cause for discharge."' 2' Thus,even if a tenure law is viewed as granting contractual rights tocontinued employment, discharge for failure to abide by a unionsecurity agreement would not violate the contract clause.

VSTATE LAW

Thirteen states now have provisions in their public employ-ment bargaining laws that expressly permit various forms of unionsecurity. 22 Only the provisions in the laws of Alaska, Kentucky, andWashington, however, could be construed to authorize bargainingover all the forms of union security presently bargainable underthe NLRA and RLA-the union shop, agency shop, maintenanceof membership agreement, and fair share agreement.1 23 The laws

19 For example, in Taylor v. Board of Educ., 31 Cal. App. 2d 734, 89 P.2d 148 (1939),a California appellate court held that the state's Teacher Tenure Act does not confercontractual rights to continued employment on teachers who have met the requirements fortenure enumerated in the Tenure Act. Accord, Groves v. Board of Educ., 367 111. 91, 10N.E.2d 403 (1937); Campbell v. Aldrich, 159 Ore. 264, 79 P.2d 1257 (1938).

120 MASS. ANN. LAWS ch. 31, § 43(g) (Supp. 1974); MICH. STAr. ANN. § 15.2001 (1968).121 See text beginning at note 191 infra.122 See notes 123-24 infra.123 Alaska law authorizes all public employees except teachers to bargain over all forms

of union security except the closed shop. ALASKA STAT. §§ 23.40.1 10(b)(1), (2), 23.40.250(5)(1972). Kentucky law authorizes bargaining over a union shop for firefighters. Ky. REv.STAT. ANN. § 345.050(1)(c) (Supp. 1973). Washington law authorizes bargaining over everyform of union security except the dosed shop for all public employees. WASH. REV. CODEANN. § 41.56.122(1) (Supp. 1973).

When a law such as that of Kentucky authorizes a union shop, which is a more stringentform of union security than either the agency shop, maintenance of membership agreement,or fair share agreement, it is likely that these other less stringent forms of union security alsowill be deemed bargainable. That has been the interpretation given to § 8(a)(3) of the NLRA(29 U.S.C. § 158(a)(3) (1970)), which expressly authorizes only those union security agree-ments requiring union "membership . . . on or after the thirtieth day following thebeginning of such employment or the effective date of such agreement, whichever is the

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of the other ten states are more restrictive in the forms of unionsecurity that are authorized and, additionally, often distinguishbetween classes of public employees in their authorization of suchdevices.1

2 4

When public employment bargaining legislation is silent on thenegotiability of union security, the issue arises as to what, if any,forms of union security are negotiable. In some states that issue isresolved by general "right-to-work" legislation which applies toboth public employees and all private employees not covered bythe RLA.' 2 5 Some right-to-work laws prohibit all forms of unionsecurity, 2 6 while others expressly prohibit only those union se-

later." NLRB v. General Motors Corp., 373 U.S. 734 (1963); American Seating Co., 98N.L.R.B. 800 (1952).

£24 The public employment laws in Michigan (MicH. STAT. ANN. § 17.455(10) (Supp.1974)) and Montana (MONT. REV. CODES ANN. § 59-1605(c) (Supp. 1974)) authorize bargain-ing over an agency shop for all public employees, while a Rhode Island statute (R.I. GEN.

LAws ANN. §§ 36-11-1, -2 (Supp. 1973)) endorses the agency shop only for state employees.Four other Rhode Island statutes, which grant the right to bargain collectively to firemen (id.§ 28-9.1-6), policemen (id. § 28-9.2-6), teachers (id. § 28-9.3-4 (1969)), and municipalemployees (id § 28-9.4-3), are silent on the issue of union security. A Vermont law alsoauthorizes bargaining over an agency shop for municipal employees, but specifically pro-hibits municipal employers from discriminating against an employee for failing to abide byan agency shop agreement, thereby rendering the right to an agency shop illusory. VT.

STAT. ANN. tit. 21, 99 1722(1), 1726(a)(8) (Supp. 1974). When state employees are involved,Vermont law authorizes bargaining over a provision requiring employees to pay a fee equalto one year of union dues if the employee wishes to utilize a union representative in anygrievance procedure. Id. tit. 3, § 941(k) (1972). Pennsylvania authorizes bargaining overmaintenance of membership dues for all public employees except policemen and firemen.PA. STAT. ANN. tit. 43, § 1101.401 (Supp. 1974). Wisconsin (Wis. STAT. ANN. §§ 111.70(1)(h),(2), 111.81(6), 111.84(1)(f) (1974)) and Massachusetts (MAss. LAws ANN. ch. 150E, § 12(Supp. 1974)) authorize bargaining over a fair share agreement for all public employees,while a Hawaii law requires all public employers to establish a fair share arrangement upondemand by an exclusive bargaining agent. HAWAII REv. STAT. §§ 89-2(16), -4 (Supp. 1973).Minnesota (MINN. STAT. ANN. § 179.65(2) (Supp. 1974)) and Oregon (ORE. REv. STAT.

99 243.711(10), (16), 243.730(4), 51 GOV'T EMPLOYEE REL. REP., Feb. 18, 1974, at Ref. FileNo. 4611) authorize bargaining over a contractual provision that would require unionmembers to pay union dues and nonunion members to pay a pro rata share of the costsincurred by the union in the collective bargaining process.

Instead of expressly legitimizing a particular form of union security, the public em-ployment law applicable to school teachers in Delaware prohibits bargaining over a unionshop. DEL. CODE ANN. tit. 14, § 4003(a) (Cum. Supp. 1970). The other Delaware publicemployment bargaining law that applies to all public employees except teachers is silent onthe issue of union security. Id. tit. 19, § 1301.

125 The local option clause of the Labor-Management Relations Act (Taft-Hartley Act)(29 U.S.C. § 164(b) (1970)) expressly authorizes states to enact laws prohibiting agreementsthat require union membership as a condition of employment, in Retail Clerks Local 1625 v.Schermerhorn, 375 U.S. 96 (1963), the Supreme Court construed that section of theTaft-Hartley Act as also validating state laws outlawing agreements conditioning employ-ment on the payment of a bargaining service fee to unions. I& at 98-103.

126 The laws of Alabama, Arkansas, Iowa, Mississippi, Nebraska, and Virginia contain

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curity devices that require actual union membership as a conditionof employment.

1 2 7

In the absence of statutes dealing directly with the negotiabilityof union security agreements in the public sector, the judiciarymust determine what, if any, forms of union security are negoti-able. Because most public employment bargaining laws define thescope of negotiable subjects in the NLRA language of "wages,hours and other terms and conditions of employment,"1 2 8 theinitial issue for judicial resolution is whether a particular form ofunion security comes within the plain meaning of this language.

The phrase "wages, hours, and other terms and conditions ofemployment" is, on its face, expansive enough to encompass allexisting forms of union security and was so construed under theNLRA prior to its 1947 amendments. 129 Few decisions discuss thenegotiability of union security under the recently enacted statepublic employment bargaining laws that adopt NLRA-type lan-guage to define the scope of negotiable subjects. The New Hamp-shire Supreme Court130 and the Oregon Attorney General'31 haveheld that union shop agreements are within the plain meaning ofthat language. Two Michigan trial courts also found agency shopagreements to be within the plain meaning of that language.1 32

The interpretative issue under many public employment bar-gaining laws, however, is more complex than merely determiningwhether a particular form of union security comes within the plainmeaning of the phrase "wages, hours, and other terms and condi-tions of employment." Most public employment bargaining lawscombine an NLRA-type definition of negotiable subjects with otherstatutory provisions that guarantee employees the right to join ornot to join a union, 33 or that prohibit employers from discriminat-

this type of flat prohibition. ALA. CODE tit. 26, § 375(1), (5) (1958); ARK. CONST. amend. 34,

§ 1; IOWA CODE ANN. § 736A.1, .4 (1973); MIss. CONST. art. 7, § 198-A.; NEB. CONST. art. 15,99 13, 14, 15; VA. CODE ANN. §§ 40.1-58, -62 (1970).

127 This kind of provision is found in the laws of Arizona, Florida, Kansas, Nevada,North Carolina, North Dakota, South Carolina, and South Dakota. ARiz. REV. STAT. ANN.§ 23-1302 (1971); FLA. CONST. art. 1, § 6; KAN. CoNsT. art. 15, § 12; NEv. REv. STAT.§ 613.250 (1973); N.C. GEN. STAT. § 95-78 (1965); N.D. CENT. CODE § 34-01-14 (1972); S.C.CODE ANN. § 40-46 (1962); S.D. COMPILED LAws ANN. § 60-8-3 (1967).

128 For an exhaustive list of the public employment bargaining laws that define the

scope of bargainable subjects in NLRA-type language, see Blair, supra note 2, at 7.129 See note 20 and accompanying text supra.10 Tremblay v. Berlin Police Union, 108 N.H. 416, 237 A.2d 668 (1968).

131 Op. Ar'Y GEN. No. 6449 (Ore. 1968).132 Warczak v. Board of Educ., 73 L.R.R.M. 2237 (Mich. Cir. Ct. 1970); Nagy v. Detroit,

60 CCH Lab. Cas. 52,105 (Mich. Cir. Ct. 1969).,3 See, e.g., NJ. STAT. ANN. § 34:13A-5.3 (Supp. 1974); N.Y. CIv. SERV. LAW § 202

(McKinney 1973).


ing against employees to encourage or discourage unionmembership. 34 Provisions of this type could be construed to out-law bargaining over all, or some, forms of union security.

Certainly, closed shop and union shop agreements should befound to violate the plain meaning of statutes that grant employeesthe right not to join unions and statutes that prohibit employerdiscrimination to encourage union membership. The predominanteffect of conditioning employment on union membership, as theclosed shop and union shop do, is to coerce employees into joiningunions. To permit such coercion under public employment bar-gaining laws that grant employees the right not to join unionswould render this right meaningless. Similarly, these agreements,by conditioning employment on union membership, require em-ployers to distinguish between union and nonunion employees in amanner that would tend to induce employees to join a union.Hence, since closed shop and union shop agreements clearly con-travene both types of statutes, they should be deemed outside thescope of bargaining under these statutes.

Maintenance of membership agreements also appear to con-travene the plain meaning of statutes that give employees the rightnot to join unions. That right, to be meaningful, should encompassthe right to discontinue union membership. But maintenance ofmembership agreements prevent employees who elect union mem-bership from disaffiliating themselves from the union without lossof employment until the collective bargaining agreement has ex-pired, thereby coercing a continuation of union membership. Suchcoercion should be found to violate statutes that give employees theright not to join unions. Additionally, such coercion of continuingmembership involves employer conduct that distinguishes betweenunion and nonunion employees and thereby contravenes statutesthat prohibit employer discrimination to encourage union mem-bership.

Additional support for finding union shop and maintenanceof membership agreements invalid under public employment lawsthat prohibit employer discriminatory conduct to encourage unionmembership comes from section 8(a)(3) of the NLRA. 13 5 Thatsection prohibits discriminatory conduct on the part of employersto encourage or discourage union membership, but further pro-vides that

134 See, e.g., ALAsKA STAT. § 23.40.110(3) (1972); MICH. STAT. ANN. § 17.455(10) (Supp.1974).

135 29 U.S.C. § 158(a)(3) (1970).

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Nothing in this [Act] . . . shall preclude an employer frommaking an agreement with a labor organization... to require asa condition of employment membership therein on or after thethirtieth day following the beginning of such employment or theeffective date of such agreement, whichever is the later.13 6

It is likely that most state legislatures were familiar with section8(a)(3) and its proviso when they enacted their public employmentbargaining laws. The failure of state legislatures to adopt theproviso which expressly validates union shop and maintenance ofmembership agreements, while adopting the remainder of section8(a)(3), could be construed to imply a legislative intent to excludethese agreements from public sector collective bargaining.

Moreover, the absence of a section 8(a)(3)-type proviso mayfurther be used to infer a legislative intent to exclude even agencyshops from public sector collective bargaining. The obligations ofunion membership agreements permitted by the section 8(a)(3)proviso are limited by other language in this section to the paymentof "periodic dues and initiation fees."'1 37 The Supreme Court, inNLRB v. General Motors Corp.,' 38 found that by so limiting theenforceable obligations of union membership, the NLRA makesthe union shop permitted under the proviso the practical equiva-lent of the agency shop.' 39 It is likely that most state legislatureswere familiar with the Court's description of the union shopspermitted under section 8(a)(3) when they enacted their publicemployment bargaining laws. Thus, the omission of a section8(a)(3)-type proviso from public employment laws that prohibitemployer discriminatory conduct to encourage union membershipcould likewise be used to infer a legislative intent to make agencyshop agreements nonnegotiable.

The Michigan Supreme Court, in Smigel v. Southgate CommunitySchool District,'40 found agency shop agreements to be nonnegoti-able under a section of that state's Public Employment RelationsAct which prohibits employers from discriminating to encourageor discourage union membership, but which contains no "savings"proviso for union security agreements.14' Four justices relied on

136 Id.137 Id.138 373 U.S. 734 (1963).139 Id. at 743.140 388 Mich. 531, 202 N.W.2d 305 (1972).141 The Michigan Public Employment Relations Act subsequently was amended to

authorize bargaining over agency shop agreements. MICH. STAT. ANN. § 17.455(10) (1968),as amended MICH. STAT. ANN. § 17.455(10) (Supp. 1974).

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Michigan's previously enacted Private Employment RelationsAct,142 which has provisions similar to section 8(a)(3) of the NLRAand its proviso, as well as on the NLRA itself, in finding agencyshop agreements to be impermissible in the public sector.143 Thefour justices reasoned that the absence of any similar proviso fromMichigan's Public Employment Relations Act implied a legislativeintent to invalidate agency shop agreements in the public sector.Three justices also opined, with little analysis, that agency shopagreements violate the plain meaning of the statutory provisionprohibiting employers from discriminating to encourage unionmembership.

144

The Rhode Island Supreme Court 145 and appellate courts inNew York146 and New Jersey 47 also have found agency shopagreements to be outside the scope of collective bargaining underpublic employment laws that give employees the right to join or notto join a union. Additionally, the New Jersey law1 48 gives em-ployees the right to refrain from assisting a union, while the NewYork law gives employees the right to refrain from participating ina union. 49 The New Jersey and New York courts found that anagency shop agreement coerces employees to join a union and, atthe very least, constitutes forced employee participation in, orassistance to, a union, contrary to the respective state statutes. 50

142 MICH. STAT. ANN. §§ 17.454(15), (17) (1968).141 Justices Adams, T.G. Kavanagh, T.M. Kavanagh, and Brennan relied on the

existence of a "savings" proviso in both the NLRA and the Michigan Private EmploymentRelations Act in finding agency shop agreements to be invalid under the Michigan PublicEmployment Relations Act. 388 Mich. at 539-43, 544-46, 202 N.W.2d at 306-08, 309-10.Justice Williams relied solely on the existence of a "savings" proviso in the NLRA in hisopinion, which also found agency shop agreements to be invalid under the Michigan PublicEmployment Relations Act. Id. at 543-44, 202 N.W.2d at 308-09.

144 Id. at 541-43, 202 N.W.2d at 308. ChiefJustice T. M. Kavanagh wrote an opinion inwhich Justices Adams and T. G. Kavanagh joined.

145 Town of North Kingstown v. North Kingstown Teachers Ass'n, 110 R.I. 698, 297A.2d 342 (1972). The Rhode Island court expressed willingness to approve agency shopagreements strictly limited to payment by nonunion employees of only enough money tocover the benefits actually received.

"I Farrigan v. Helsby, 42 App. Div. 2d 265, 346 N.Y.S.2d 39 (3d Dep't 1973).147 New Jersey Turnpike Employees' Local 194 v. New Jersey Turnpike Auth., 123

N.J. Super. 461, 303 A.2d 599 (1973), affd, 64 N.J. 579, 319 A.2d 224 (1974).148 N.J. STAT. ANN. § 34:13A-5.3 (Supp. 1974).149 N.Y. CIv. SERV. LAw § 202 (McKinney 1973).150 In Farrigan v. Helsby, 42 App. Div. 2d 265, 346 N.Y.S.2d 39 (3d Dep't 1973), the

court concluded that "any forced payment of dues or their equivalent would be in violationof the law as constituting, at the very least, participation in an employee organization." Id. at267, 346 N.Y.S.2d at 41.

Similarly, in New Jersey Turnpike Employees' Local 194 v. New Jersey TurnpikeAuth., 123 N.J. Super. 461, 303 A.2d 599 (1973), affTd, 64 N.J. 579, 319 A.2d 224 (1974),

CORNELL LAW REVIEW

The Rhode Island Supreme Court did not decide whether anagency shop agreement constituted coercion that would violate anemployee's statutory right not to join a union, although this argu-ment was discussed.' 5 ' Instead, the court found an agency shopagreement to be nonnegotiable because it is patently unfair torequire nonunion employees to pay to a union a sum of money-union dues and fees-that bears no relation to their actual shareof collective bargaining costs.' 52

In fact, agency shop agreements should be held to violatestatutes that grant employees the right not to join unions or thatprohibit discriminatory conduct by employers to encourage unionmembership. Such agreements are inherently coercive of unionmembership since they require nonunion employees to pay theequivalent of union dues and fees to retain employment, whiledenying to these employees the benefits of union membershipother than the benefits flowing directly from the collective bargain-ing agreement. The natural desire of employees to obtain all thebenefits of union membership that they have been forced topurchase by their employer constitutes a substantial inducement tobecome a union member. That inducement is sufficient to violatestatutes guaranteeing employees the free exercise of the right notto join a union or prohibiting employer discriminatory conduct 153

to encourage union membership.

the court assessed the validity of the agreement under the relevant New Jersey Statute'(N.J.STAT. ANN. § 34:13A-5.3 (Supp. 1974)), which

confirms a right in public employees not only to refrain from activity in the natureof forming or joining an employee organization but also to refrain from assistingsuch an organization. The agency shop arrangement ... does purport to relate thepayments to be made by nonmembers to the union's expenses for collectivenegotiations and the handling of grievances. But it also mandates that payments tothe union by nonmember employees are a condition of employment; . . . andfailure to pay results in discharge. These clauses.. . would have the predominanteffect of inducing, if not compelling, union membership, participation and assis-tance on the part of nonmember employees.

Id. at 469-70, 303 A.2d at 604.151 Town of North Kingstown v. North Kingstown Teachers Ass'n, 110 R.I. 698,

702-04, 297 A.2d 342, 344-45 (1972).152 The court recognized tlat either of two types of unfairness might result, depending

upon the specific provisions of the agreement. It found that "it would he manifestlyinequitable to permit those who see fit not to join the union to benefit from its serviceswithout at the same time requiring them to hear a fair and just share of the financialburdens .... " On the other hand, compelling the nonunion members to pay more than ajust portion of the costs of the benefits conferred upon them by the union, "would, in effect,sanction an inverse 'free-rider' situation in which the union member, rather than thenon-joiner, would be a 'free-rider.'" Id. at 706, 297 A.2d at 346.

153 With respect to an agency shop agreement, or any agreement conditioning employ-ment on the payment of a fee to the union, the employer discrimination is not betweenunion and nonunion members, but between employees who will financially support the

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Those public employment laws, however, that attempt to pro-tect employees in their decisions on union rfiembership also requireunions selected as exclusive bargaining agents to represent in anondiscriminatory manner all employees, union and nonunionalike, in the bargaining unit.154 To impose the duty on a union torepresent nonunion employees, without permitting any device fora union to recoup from these employees a share of the costs ofrepresentation, is unfair and contrary to the apparent intent oflegislatures in enacting public employment bargaining laws.

The New Jersey and Rhode Island courts, as well as threejustices of the Michigan Supreme Court, have recognized thisunfairness in their decisions invalidating agency shop agreementsfor public employees. 155 They have suggested in dicta that someother union security arrangement, which relates the sum thatnonunion employees must pay a union as a condition of employ-ment to their share of collective bargaining costs, would bepermissible. 156

Yet any bargaining fee arrangement that distinguishes be-tween union and nonunion employees in the amount paid to aunion as a condition of employment is also suspect under statutesgranting employees the right to join or not to join unions orprohibiting employer discriminatory conduct to encourage or dis-courage union membership. For example, it is possible that anonunion employee's pro rata share of bargaining costs might bemore than union dues or fees.' 57 In that case employees would beinduced to join a union in order to save money. Such inducementappears sufficiently coercive to contravene the employee's right torefrain from union membership. In addition, because of theemployer's involvement in the underlying bargaining arrangement,such inducement can be considered discriminatory conduct by the

union and those who will not. For a discussion of the meaning of discrimination under§ 8(a)(3) of the NLRA (29 U.S.C. § 158(a)(3) (1970)), see Radio Officers' Union v. NLRB,347 U.S. 17, 39-52 (1954).

"4 See note 34 supra.'5 See notes 144-52 and accompanying text supra.'5 Smigel v. Southgate School Dist., 388 Mich. 531, 543, 202 N.W.2d 305, 308 (1972);

New Jersey Turnpike Employees' Local 194 v. New Jersey Turnpike Auth., 123 N.J. Super.461, 469, 303 A.2d 599, 604 (1973), aff'd, 64 N.J. 579, 319 A.2d 224 (1974); Town of NorthKingstown v. North Kingstown Teachers Ass'n, 110 R.I. 698, 707, 297 A.2d 432, 436 (1972).

117 This would occur if the union divided the costs of collective bargaining equallyamong all employees in the bargaining unit, but chose to charge each nonunion employeewho elected to use a union representative in a grievance procedure with the entire cost ofprocessing his grievance, while spreading the cost of a union member's grievance over allunion members.

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employer against nonunion members tending to encourage unionmembership.

It is more likely, however, that a nonunion employee's share ofthe costs of collective bargaining will be less than the amount ofunion dues and fees. 1 5 8 If union members are required to payunion dues and fees as a condition of employment, while nonunionemployees are required to pay the lesser amount equivalent to apro rata share of bargaining costs, employees are induced torefrain from union membership to save money. Again, such in-ducement appears sufficiently coercive of nonunion membershipto violate statutes granting employees the right to decide whetheror not to join a union. It also involves employer discriminationagainst union employees that is very likely to discourage unionmembership.

Indeed, the Michigan Court of Appeals, in Smigel v. SouthgateCommunity School District,159 recognized the strong possibility ofencouragement or discouragement of union membership resultingfrom a union security device that differentiates between theamounts union and nonunion employees must pay a union as acondition of employment. The court concluded that the only typeof union security agreement permissible under a statute prohibit-ing employer discriminatory conduct to encourage or discourageunion membership is one that compels all employees in the unit,union and nonunion alike, to pay a pro rata share of bargainingcosts.1 60 Although that device would eliminate the "free rider," it

158 Union dues are used to finance many activities in addition to the collective bargain-

ing process:Rather typically, unions use their members' dues to promote legislation .... topublish newspapers .. .. to finance low cost housing, to aid victims of naturaldisasters, to support charities, to finance litigation, to provide scholarships, and todo those things which the members authorize the union to do in their interest ....

Retail Clerks v. Schermerhorn, 373 U.S. 746, 753 n.6 (1963).159 24 Mich. App. 179, 180 N.W.2d 215 (1970), rev'd, 388 Mich. 531, 202 N.W.2d 305

(1972).160 In Smigel, the Michigan Court of Appeals was asked to rule on the validity of an

agency shop agreement. The court found that an agency shop agreement is valid only whenthe amount of union dues to be paid under the agreement is equivalent to an employee's prorata share of the costs of collective bargaining. The court held, however, that it lacked thefactual record necessary to decide whether that essential equivalency existed in the presentcase. It therefore reversed and remanded to the trial court, which had sustained the agencyshop agreement, for a hearing to determine what percentage of the fees paid the unionunder the agency shop agreement were used to defray the costs of collective bargaining. 24Mich. App. 179, 180 N.W.2d 215 (1970). The decision of the court of appeals was reversedby the Michigan Supreme Court, which held that agency shop agreements are invalid ontheir face, but without a majority opinion on the issue whether an agreement that requiresall employees in the bargaining unit to pay a pro rata share of collective bargaining costswould be valid. 388 Mich. 531, 202 N.W.2d 305 (1972).

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may still involve some inducement for an employee to join a union.When an employee must pay a union a pro rata share of bargain-ing costs-indeed, when he must pay any money to a union as acondition of employment-he is induced to join the union, since aperson who must support an organization is likely to wish a voice inthe internal affairs of the organization. That voice is impossiblewithout union membership. Such inducement, although certainlyless substantial than that existing under other union security de-vices, might be held to violate statutory provisions giving em-ployees the right not to join unions or prohibiting employers fromdiscriminating to encourage union membership.

To so construe those provisions would result in a requirementthat unions elected as exclusive agents represent in a nondis-criminatory fashion all employees in the bargaining unit, unionand nonunion alike, while denying unions any device for recoup-ing from nonunion employees a part of the costs of representation.It is patently unfair to permit employees who wish not to join aunion to benefit from a union's bargaining services, rendered atsome cost, without also permitting some device that will force themto bear their fair share of the costs. Therefore, provisions grantingemployees the right to join or not to join unions or prohibitingemployer discriminatory conduct to encourage or discourageunion membership should be construed to permit union securitydevices that require all employees in the bargaining unit to pay apro rata share of the costs of collective bargaining as a condition ofemployment.

Fair share agreements, however, may be deemed impermissi-ble under a few state statutes, like those in New York and NewJersey, that give employees the right not only to refrain fromjoining a union, but also the right to refrain from participating inor assisting a union. 16 1 An agreement requiring an employee topay a union for his fair share of bargaining costs as a condition ofemployment could be read to contravene the plain meaning of thewords "refrain from participating in" or "assisting" a union. 62

Nevertheless, those words must be construed in conjunction withthe statutory duty imposed on unions to represent all employees inthe unit in a nondiscriminatory fashion. It is inconceivable that alegislature would impose such a costly duty on unions and alsointend the words "to refrain from participating in or assisting a

161 N.J. STAT. ANN. § 34:13A-5.3 (Supp. 1974); N.Y. CIV. SERV. LAW § 202 (McKinney

1973).162 See statutes cited note 161 supra.

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union" to grant employees the right to refuse to pay for their fairshare of bargaining costs. Hence fair share agreements should befound negotiable under public employment laws that grant em-ployees the right to refrain from participating in or assisting aunion.

Unions, however, contend that the implementation of fairshare agreements imposes an impossible accounting burden onthem. They argue, therefore, that courts should find agency shopagreements to be within the scope of bargainable subjects unlessexpressly prohibited. 63 Although the mechanics of ascertainingwhat expenses of a union are attributable solely to the collectivebargaining process involve substantial record-keeping at consider-able cost to the union, fair share agreements have been successfullyimplemented under state public employment laws that expresslypermit no other types of union security agreements. 64

The more fundamental issue, of course, is whether a statelegislature should expressly authorize bargaining not only over fairshare agreements, but also over the closed shop, union shop,maintenance of membership agreement, and agency shop. Thearguments militating against legislative authorization of the closedshop, true union shop, and maintenance of membership agree-ment have been discussed already. 65 Indeed, such argumentssupport public employment legislation expressly outlawing thoseagreements.

The argument against public employment legislation expresslyauthorizing the agency shop is that it is unfair to require employeeswho elect not to join a union to support the union beyond their fairshare of bargaining costs. But there are two arguments favoringlegislative authorization of agency shop agreements. First, unionswould have substantial savings in record-keeping costs if all em-ployees in the bargaining unit were required to pay union duesand initiation fees. The money saved could be passed on to allemployees in the bargaining unit in the form of lower union duesand fees. Second, the portion of union dues not devoted todefraying collective bargaining expenses is often used for nonpolit-ical purposes that contribute to the general well-being of all

163 Brief for Defendant at 4, Smigel v. Southgate School Dist., 388 Mich. 531, 202

N.W.2d 305 (1972)."4 See note 12 supra. In Hawaii State Teachers Ass'n, 525 Gov'T EMPLOYEE REL. REP.,

Oct. 15, 1973, at E-l, the Hawaii Public Employment Relations Board determined thebargaining service fee which nonunion employees had to pay a majority union under a fair

share agreement.165 See notes 69-77 and accompanying text supra.

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employees. 166 Neither of these reasons, however, providessufficient justification for forcing employees who refrain fromunion membership to support the union beyond paying for theirfair share of bargaining costs.

VI

TEACHER TENURE AND CIVIL SERVICE ACTS

Even if a union security agreement is found to be within thestatutory scope of bargainable subjects and consistent with all otherprovisions of a public employment bargaining law, a court still mayinvalidate the agreement for particular classes of public employees.Any final determination of the legality of a union security agree-ment under most state public employment laws applicable to allpublic employees must be made in the context of civil service andteacher tenure acts that are applicable only to limited classes ofpublic employees. These acts, which antedate public employmentbargaining laws, frequently provide that designated classes of pub-lic employees can be discharged only on specifically enumeratedgrounds. 167 Unless the civil service and teacher tenure acts providefor discharge for failure to abide by a union security agreement, orunless the public employment bargaining law provides that failureto abide by a union security agreement constitutes grounds fordischarge under these acts, the courts must decide whether em-ployees covered by teacher tenure and civil service acts can bedischarged for breaching a union security agreement.

When teacher tenure and civil service acts provide for dis-charge on grounds that cannot be construed to encompass thebreach of a union security agreement, they seem to conflict withpublic employment bargaining laws that expressly or impliedlyauthorize discharge for the breach of such an agreement. Inresolving the conflict, a court could decide that the public employ-ment law's authorization of union security agreements for allpublic employees impliedly amends the grounds for discharge inthe prior acts and makes the failure to abide by a union securityagreement a ground for discharging the employees covered by theacts. In contrast, a court could decide that the civil service andteacher tenure provisions enumerating the grounds for the dis-

166 See note 49 supra.167 See, e.g., MICH. STAT. ANN. § 15.2001 (1968) (dismissal only for reasonable and just

cause); N.Y. Civ. SERv. LAw § 75 (McKinney 1973) (dismissal only for misconduct orincompetency).

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charge of specific classes of public employees are exclusive andconstitute an implied exception to the public employment law'sauthorization of union security agreements for all public employ-ees. Hence, those public employees covered by teacher tenure andcivil service acts could not be discharged for failing to abide by aunion security agreement, even though all other public employeescould be so discharged.

Illustrative of the latter view is an opinion by the AttorneyGeneral of the state of Oregon' 68 issued in response to a requestfor a ruling on the validity of a union shop agreement negotiatedfor "classified employees"' 16

9 under the Oregon Public Employes'Collective Bargaining Act.' 70 That Act authorizes all public em-ployers to bargain collectively, through representatives of theirown choosing, over "employment relations,"1 7 1 which term theAttorney General construed to include union shop agreements.1 72

Oregon also has a civil service law173 that is applicable only toclassified employees. This law enumerates grounds for the dis-charge of classified employees that could not reasonably be con-strued to encompass the breach of a union shop agreement.1 7

4 The

1O8 Op. Arr'y GEN. No. 6449 (Ore. 1968).

'6 ORE. REv. STAT. § 241.215 (1967). That statute requires the board of countycommissioners, in those counties which have enacted civil service legislation, to classify allpositions in the public service of the county. The statute provides:

'The classifications shall be based upon the respective functions of the positions andthe compensation attached thereto, and shall be arranged so as to permit thegrading of positions of like cbaracter in groups and subdivisions, to the end thatlike compensation sball be paid for like duties.

Id.170 Ch. 579, § 4, [19631 Ore. Laws (repealed by ch. 536, § 39, [1973] Ore. Laws).171 Id.

172 O. ATT'Y GEN., supra note 168, at 522-23. The Oregon Public Employes' Collective

Bargaining Act subsequently was amended to authorize, by express language, agreementsthat require union members to pay union dues and nonunion members to pay a pro rata

share of the costs incurred by the union in the collective bargaining process. ORE. REV. STAT.§ 243.672(c) (1974).

1' ORE. REv. STAT. §§ 241.002-990 (1967).14 The Oregon civil service law authorizes municipal governments to adopt civil service

rules that regulate the discharge of classified municipal employees and that have the force of

state law once adopted. ORE. REv. STAT. § 241.006 (1967) (enabling clause). Pursuant to theCivil Service Law, a municipal government adopted the following civil service rules wbichgave rise to the ruling by the Attorney General:

(1) The tenure of persons subject to civil service sball continue during goodbehavior and such persons may be dismissed . . . only for the following causes:

(a) Incompetency, inefficiency or inattention to or dereliction of duty.(b) Disbonesty, intemperance, drug addiction, immoral conduct, insubor-

dination or discourteous treatment of the public or of fellow employees.(c) Any other wilful failure of good conduct tending to injure the public

service.(d) Any wilful violation of the provisions of this Act or the rules or

regulations adopted under this Act.


Attorney General found that the section of the Bargaining Actauthorizing the discharge of all public employees for the breach ofa union shop agreement 175 conflicted with the civil service law'sprovisions for the discharge of classified public employees.1 76 Toresolve the conflict the Attorney General used the rule of statutoryconstruction that the provisions of a special statute control theprovisions of a general statute in case of conflict.1 77 He then foundthe civil service law to be a special statute since it applies only toclassified public employees and the Bargaining Act to be a generalstatute since it applies to all public employees. The AttorneyGeneral therefore concluded that the provisions for the dischargeof classified public employees in the civil service law are exclusiveand that classified employees cannot be discharged for the breachof a union shop agreement.1 78

A Michigan trial court, however, used the same rule of statu-tory construction to reach the opposite conclusion. In City of Warrenv. Local 1383, Firefighters,1 79 the court was asked for a declaratoryjudgment on the validity of an agency shop agreement. The courtwas confronted with Michigan's Public Employment Relations Act(PERA),1 80 which authorizes all public employees to bargain collec-tively over "wages, hours . . or other conditions of em-ployment," 18 and with a civil service act18 1 providing for thedischarge of firemen only for neglect of duty, incompetency, andinefficiency. 18 The court found that agency shop agreements werewithin the definition of bargainable subjects under the PERA andthat the PERA's authorization of agency shops conflicted with thecivil service law's provisions for the discharge of firemen. Thecourt further found the PERA to be special legislation, since itdeals with the "special" situation of public employees who elect toengage in collective bargaining, and the civil service law to begeneral legislation.'The court concluded that, as special legislation,the PERA's authorization of agency shops prevailed over the civil

(e) Conviction of a felony or misdemeanor involving moral turpitude.(f) The wilful giving of false information or withholding information with

intent to deceive, when making application for entrance.Op. ATT'y GEN., supra note 168, at 523, quoting Columbia County, Ore., Civil Service Act§ 35.

175 Ch. 579, § 4, [1963] Ore. Laws (repealed by ch. 536, § 39, [1973] Ore. Laws).176 See note 174 supra.177 Appleton v. Oregon Iron & Steel Co., 229 Ore. 81, 86, 358 P.2d 260, 262 (1960).178 Op. ATT'y GEN., supra note 168, at 523-24.179 68 L.R.R.M. 2977 (Mich. Cir. Ct. 1968).180 MICH. STAT. ANN. § 17.455(9) (1968).181 Id. § 17.455(11).182 Id. § 5.335 1.183 Id. §§ 5.3363, 64.

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service law's provisions for the discharge of firemen. Thus, firemencould be discharged for failing to abide by an agency shopagreement. '

84

Through the use of a mechanical rule of statutory construc-tion, the Michigan court and the Oregon Attorney General wereable to resolve the conflict between a public employment law'sauthorization of union security and a civil service act's dischargeprovision that did not include the breach of a union securityagreement. Unfortunately, the inconsistent results were accom-plished without any analysis of the reasons why a union securityagreement should or should not be bargainable for employees whoare subject to civil service and teacher tenure acts.

The mere existence of other acts specifying grounds for thedischarge of certain classes of employees does not justify excludingthese employees from a provision of a public employment bargain-ing law similarly dealing with discharges. The justifications forlegislative and judicial recognition of the principle of union se-curity arise from the duty that bargaining laws impose on majorityunions to represent all employees, union and nonunion alike, inthe bargaining unit. 8 5 Any justifications for union security agree-ments that arise from that duty apply in every case where a unionmust represent all employees in the bargaining unit regardless oftheir union affiliation. When a state legislature places the em-ployees covered by civil service and teacher tenure acts in the samecategory as all other public employees with regard to union rep-resentation, these employees should be treated in the same manneras all other public employees in terms of union security agree-ments. It clearly was not the legislative intent in enacting civilservice and teacher tenure acts that employees so covered beimmune from the effects of union security agreements, since theseacts were passed prior to laws authorizing collective bargaining forall public employees.18 6

Further, the principle of union security is consistent with thelegislative purposes behind the discharge provisions in civil serviceand teacher tenure acts. Those acts were passed to protect em-ployees from arbitrary action by their public employers 8 7 and to

184 City of Warren v. Local 1383, Firefighters, 68 L.R.R.M. 2977 (Mich. Cir. Ct. 1968).185 See notes 34-36 and accompanying test supra.186 See W. CARPENTER, supra note 32; M. MosKow, supra note 78; NATIONAL EDUCATION

ASSOCIATION, RESEARCH BULLETIN: THE PROBLEM OF TEACHER TENURE (1924); NATIONAL

EDUCATION ASSOCIATION, TRENDS IN TEACHER TENURE THRU LEGISLATION AND COURT

DECISION (1957); A. SAGESER, supra note 31.187 As used here, the term "public employer" refers to the various public agencies that

employ workers within a governmental unit.

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ensure that the government would not lose competent employeesfrom its service uriless a legitimate public purpose would be servedthereby.' 88 When a state legislature expressly authorizes unionsecurity. agreements for public employees, it necessarily has de-cided that these agreements serve a legitimate public purpose andthat there is nothing arbitrary in a public employer's dischargingemployees for the breach of a union security agreement.

Many public emplbyment bargaining laws are silent on theissue of union security, although they define the scope of bargain-able subjects in language that is sufficiently expansive to encompassall forms of union Security. 189 The Michigan trial court in City ofWarren and the Oregon Attorney General confronted public em-ployment bargaining laws of that type when they were asked to ruleon the validity of union security agreements negotiated for civilservice employees. A court may find a particular form of unionsecurity to be negotiable solely because it is within the literallanguage defining the scope of bargainable subjects in a publicemployment law, as did the Michigan court and the OregonAttorney General, 19 0 while at the same time believing that thisparticular form of union security does not further a legitimatepublic purpose. Indeed, although there are ample justifications forpermitting fair share agreements to be negotiable, the justificationsfor other forms of union security, particularly the closed shop andunion shop, are more tenuous and the negative aspects morestriking.' After finding one of the more objectionable forms ofunion security agreements to be negotiable solely because it iswithin the literal language defining the scope of bargainable sub-jects, a court may wish to limit the applicability of the agreement toas few employees as possible. Excluding employees covered by thedischarge provisions in civil service and teacher tenure acts facili-tates that objective. Yet, if a court believes that a particular form ofunion security agreement serves no legitimate public purpose, it isunlikely that the state legislature intended this form of agreementto be negotiable even though the agreement comes within theliteral language defining the scope of bargainable subjects in apublic employment bargaining law. Hence, the court should placethose objectionable forms of union security outside the scope ofcollective bargaining for all public employees and not merely the

188 See sources cited note 18 supra.189 See notes 14-27 and accompanying text supra.

1,30 See notes 162-83 and accompanying text supra.

"'s See notes 69-77 and accompanying text supra.

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employees covered by discharge provisions in civil service andteacher tenure acts.

Further, even if a state legislature expressly authorizes bar-gaining over a particular form of union security agreement, it ispossible that the agreement violates the United StatesConstitution.' 92 In that case, of course, the court must find theagreement invalid for all public employees.

Unlike the civil service discharge provisions that confrontedthe Michigan court and the Oregon Attorney General, many civilservice and teacher tenure acts include a ground for discharge thatcan be construed to encompass the breach of a union securityagreement. For example, such acts often provide that the em-ployees they cover can be discharged for "just cause." 193 This isfrequently the case in states with public employment bargaininglaws that authorize union security agreements for all public em-ployees. In those states, the courts must determine whether thebreach of a union security agreement constitutes "just cause" fordischarging employees under civil service and teacher tenure acts.

That issue was presented to another Michigan trial court in theSmigel case,' 9 4 where the court was asked to determine the validityof an agency shop agreement negotiated for public school teacherscovered by Michigan's Teacher Tenure Act. 95 That Act providesthat public school teachers may be discharged only for "reasonableand just cause."'l96 The agency shop agreement was negotiatedpursuant to Michigan's Public Employment Relations Act,19 7 whichauthorizes all public employees to bargain over "wages, hours ofemployment or other conditions of employment." 1 98 The courtfound that agency shop agreements serve a legitimate public pur-pose by contributing to stable employer-employee relations andtherefore should be negotiable under the broad definition ofbargainable subjects contained in the PERA. The court furtherfound that the legislative purpose in enacting the discharge provi-sions of the teacher tenure act was to protect public school teachers

192 See notes 69-76 and accompanying text supra. Similar provisions of state constitu-

tions would also be relevant.193 See, e.g., MASS. ANN. LAWS ch. 31, § 43(a) (1973); MICH. STAT. ANN. § 15.2001

(1968).194 70 L.R.R.M. 2042 (Mich. Cir. Ct. 1968), rev'd on other grounds, 24 Mich. App. 179,

180 N.W.2d 215 (1970), rev'd on other grounds, 388 Mich. 531, 202 N.W.2d 305 (1972); seenote 160 supra.

1"5 MICH. STAT. ANN. § 15.1971-.2056 (1968), as amended, (Supp. 1974).196 Id. § 15.2001 (1968).

197 Id. §§ 17.455(1)-(16) (1968), as amended, (Supp. 1974).1!-8 Id. § 17.455(11).

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from arbitrary action by local school boards. The court concludedthat the public purpose served by agency shop agreements wasentirely consistent with the legislative purpose behind the dis-charge provisions of the Teacher Tenure Act, and that the failureof a teacher to abide by an agency shop agreement constituted"reasonable and just cause" for discharge within the meaning ofthe Teacher Tenure Act. 1 9 9

The court's conclusion that public policy supported findingagency shop agreements negotiable is, at best, arguable.200

Nevertheless, once it is either legislatively or judicially determinedthat a particular form of union security serves a legitimate publicpurpose and is negotiable under a public employment bargaininglaw applicable to all public employees, breach of the agreementshould be held to constitute 'just cause" for discharge under otheracts.

VII

CIVIL SERVICE COMMISSIONS

The existence of state public employment bargaining lawsapplicable to all public employees may create an additional inter-pretative problem in states with civil service acts that are applicableonly to selected classes of public employees. Often the state publicemployment bargaining law combines a provision that authorizesunion security agreements with another provision to the effect thatnothing in the law is intended to diminish the power of a civilservice commission. 20 1 One function of a civil service commission isthe hearing of appeals from civil service employees who contendthat they have been dismissed contrary to the provisions for dis-charge enumerated in the civil service act.20 2 The legislatures of afew states have given the civil service commissions the additionalpower to prescribe the grounds on which employees subject to civilservice acts can be discharged. 20 3 It is arguable that to construe anauthorization of union security in a public employment bargaininglaw as applicable to civil service employees would diminish the

199 70 L.R.R.M. 2042 (Mich. Cir. Ct. 1968). Accord, Warczak v. Board of Educ., 73L.R.R.M. 2237 (Mich. Cir. Ct. 1970).

20 See notes 164-66 and accompanying text supra.201 See, e.g., note 210 infra.202 See, e.g., MAss. ANN. LAWS ch. 31, § 43(b) (1973); N.J. STAT. ANN. § 11:15-4 (1960);

ORE. REV. STAT. § 240.560 (1971); PA. STAT. ANN. tit. 71, § 741.203(2) (Supp. 1974).203 See, e.g., N.J. STAT. ANN. § 11:15-2 (1960); PA. STAT. ANN. tit. 71, § 741.203(1)

(Supp. 1974).

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power of a civil service commission over the discharge of theseemployees. Since the public employment bargaining law specificallyprovides that nothing in the law shall diminish the power of thecommission, it can be argued that it was the legislative intent thatcivil service employees be excluded from the law's authorization ofunion security agreements.

The Supreme Judicial Court of Massachusetts confronted thatprecise argument in Karchmar v. City of Worcester.20 4 The court wasasked to determine the validity of an agency service fee agreementfor classified municipal employees subject to the MassachusettsCivil Service Law,20 5 which is administered by a civil service com-mission and provides for the discharge of municipal civil service(classified) employees for 'just cause. '20 6 The agency service feeagreement was negotiated under the Massachusetts Municipal Em-ployees' Bargaining Law,20 7 which expressly applies to all munici-pal employees, "whether or not in the classified service, ' 208 andwhich expressly authorizes agency service fee agreements. 20 9 TheBargaining Law also provides that "[n]othing in... [the Act] shalldiminish the authority and power of the civil servicecommission. 210

The city of Worcester argued that the statement "nothing shalldiminish the authority and power of the civil service commission"in the Bargaining Law required the court to hold that civil serviceemployees are not subject to agency service fee agreements. Thecourt rejected that argument. It found that in enacting the CivilService Laws the legislature had not exhausted its power overcivil service employees. Instead, the legislature retained the powerto prescribe rules for the remoal of civil service employees whichit exercised in the Bargaining ! -w by authorizing agency servicefee agreements. Without explaiui~g its analysis, the court con-cluded that civil service employees are not excluded from legisla-tive authorization of agency service fee agreements because theauthorization, "even if it [were] treated as giving rise to a just

204 301 N.E.2d 570 (Mass. 1973).205 MASS. ANN. LAWs ch. 31 (1973), as amended, (Supp. 1974).

206 Id. § 43(b) (1973).ft7 Ch. 763, § 2, [1965) Mass. Acts & Resolves (now MASS. LAws ANN. ch. 150E, § 12

(Supp. 1974)).208 Ch. 763, § 2, [1965] Mass. Acts & Resolves (now MAss. LAws ANN. ch. 150E, § I

(Supp. 1974)).209 Ch. 763, § 2, [1965) Mass. Acts & Resolves (now MASS. LAWS ANN. ch. 150E, § 12

(Supp. 1974)).210 Ch. 763, § 2, [1965] Mass. Acts & Resolves (repealed by ch. 1078, § 1, [1973) Mass.

Acts & Resolves).

226 [Vol. 60:183


cause' for disciplinary action against a civil service employee ....did not 'diminish the authority and power of the civil servicecommission' " within the meaning of the Bargaining Law. 211

It is unfortunate that the court reached its conclusion withoutdetailed analysis, but the decision is correct and should be followedin all cases where a civil service commission's power in relation tothe discharge of civil service employees is limited to ensuring thatdischarges conform to statutory grounds. That power is not di-minished by the legislature's adding a new ground for dischargeeither to the civil service law or another law, such as the Mas-sachusetts Bargaining Law. The commission's power with respectto employee discharges remains the same-to determine in aspecific discharge situation whether the statutory grounds for dis-charge have been met. In that context, a provision in a collectivebargaining law protecting the power of a civil service commissionfrom diminishment should not be construed to exclude civil serviceemployees from legislative authorization of union security for allpublic employees.

Yet when the legislature has granted a civil service commissionthe additional power to delineate grounds for the discharge of civilservice employees, there is merit to the argument that the additionof a new ground for discharge, i.e., union security, by the statelegislature diminishes the power of the commission. The legisla-ture, by adding a new ground for discharge, has precluded thecommission from prescribing a different rule on the particularmatter. In that sense the power of the commission over thedischarge of civil service employees has been diminished.

Legislative authorization of bargaining over union security,however, does not require that a union security provision be in-cluded in a collective bargaining agreement. Instead, it merelypermits the inclusion of a union security provision in the collectivebargaining agreement, 212 which would have the effect of establish-ing failure to abide by the terms of the union security provision asa ground for discharging employees covered by the agreement. Ifa union security device, to be valid, must be negotiated with thecivil service commission in all cases where civil service employeesare subject to commission regulation of dischargeable offenses, the

211 301 N.E.2d at 576.2'2 The duty to bargain collectively over a subject does not include the duty to make

concessions while bargaining. See generally Duvin, The Duty to Bargain: Law in Search of Policy,64 COLUM. L. REv. 248 (1964); Feinsinger, The National Labor Relations Act and CollectiveBargaining, 57 MICH. L. REv. 807 (1959).

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commission's power to promulgate rules governing employees'discharges is not diminished. A union security device would consti-tute grounds for the discharge of those civil service employees onlyif the commission decided to adopt it in an agreement with theunion. That result, of course, would require construing the words"public employer" in collective bargaining laws to include a civilservice commission for purposes of bargaining over union securityagreements for civil service employees in cases where the commis-sion has the power to promulgate discharge rules for these em-ployees.

The preceding analysis is supported by the history of publicsector collective bargaining laws. Prior to the enactment of lawsauthorizing public employee collective bargaining, state legisla-tures frequently delegated the power to regulate the conditions ofpublic employment to executive officials and to civil servicecommissions. 213 Often the director of a public agency was legisla-tively granted the power to establish certain basic employmentconditions for agency employees, while a civil service commissionwas given the power to establish other conditions for the sameemployees, including grounds for discharge. That preexistingbifurcation of the power to establish working conditions for publicemployees created a problem under early public employment laws.The early collective bargaining laws totally ignored the bifurcationand merely directed all "public employers" to engage in collectivebargaining with their employees over "wages, hours, and otherterms and conditions of employment" without defining who wasthe "public employer" for purposes of bargaining over particularemployment conditions. 214

Under those laws, unions often negotiated collective bargain-ing agreements with agency directors on subjects that under preex-isting legislative delegations of power had been deemed to be solelywithin the control of a civil service commission. 215 Unions justified

213 For a discussion of the diffusion of decision-making authority that exists over the

conditions of public employment in state and local governments, see Blair, supra note 2, at8-10.

214 Id. at 10-11.2!' See, e.g., Nagy v. Detroit, 60 CCH Lab. Cas. 52,105, at 66,958 (Mich. Cir. Ct. 1969).

In Nagy, the court was asked for a declaratory judgment on the validity of an agency shopagreement between the city of Detroit and a local union representing employees in theDetroit Civil Service. The Detroit Civil Service Commission was not a party to thatagreement, nor had it participated in the collective bargaining process, although theCommission bad the power to delineate the grounds for the discharge of civil serviceemployees under the Michigan Civil Service Law and the Charter of the City of Detroit. SeeMiCH. ANN. STAT. §§ 17.455(11), (15) (1968). The agency shop provision was negotiated

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the negotiation of such items with agency directors, rather thanwith the civil service commission, by arguing that the "publicemployer," for purposes of bargaining over all conditions of em-ployment, should be the directors of the various employing agen-cies. Unions further maintained that the collective bargaining law'sdefinition of bargainable subjects impliedly reallocated the powerover all items coming within this definition from the civil servicecommission to the directors of the various employing agencies, asthe "public employer. 216

That was the context in which state legislatures began rede-signing their collective bargaining laws to ensure that preexistingdelegations of power to civil service commissions over employmentconditions would not be adversely affected by the collective bar-gaining process. A public employment bargaining law that au-thorizes union security agreements for all public employees andalso protects the power of civil service commissions from di-minishment should be construed, therefore, to require that unionsecurity agreements be negotiated directly with a civil servicecommission whenever the commission has, under a preexistingdelegation of power, the right to promulgate the grounds on whichcivil service employees can be discharged. 217 Under such a con-struction, the power of the commission to regulate dischargeswould not be diminished by legislative authorization of unionsecurity devices, since it would be the commission that woulddetermine whether or not to adopt a union security device for civilservice employees.

CONCLUSION

There is little question as to which types of union securityagreements for public employees should be considered in the

pursuant to Michigan's Public Employment Relations Act (id. §§ 17.455(l)-(16) (1968), asamended, (Supp. 1974)), which applies to all public employees, but which fails to define who isthe "public employer" for purposes of collective bargaining. The court found that agencyshop agreements may be negotiated for civil service employees, but

that the only proper and legal agency to conduct such bargaining negotiations... isthe Civil Service Commission of the City of Detroit. Without such participation, asin the instant case, no valid collective bargaining agreement can be entered into.

60 CCH Lab. Cas. at 66,965.216 60 CCH Lab. Cas. at 66,961.217 Even when a public employment bargaining law contains no provision expressly

protecting the powers of the civil service commission from diminishment, it should be soconstrued if the commission has the power to delineate grounds for the discharge of civilservice employees. See note 215 supra.

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public interest and which should not. Public policy considerationsoverwhelmingly support the authorization of fair share agreementsin public employment bargaining laws that impose a duty onmajority unions to represent all employees .in the bargaining unit,union and nonunion alike. In contrast, public policy considerationssupport legislation prohibiting the closed shop, union shop,maintenance of membership agreement, and agency shop in thepublic sector.

Most state public employment bargaining laws, however, aresilent on the issue of union security. Thus the courts must decidewhether the principle of union security is desirable in the publicsector and, further, whether a particular type of union security iswithin the definition of bargainable subjects set forth in publicemployment bargaining laws. The resolution of these issues in-volves a myriad of interpretative problems that could be avoided byprovisions in public employment bargaining laws expressly dealingwith the negotiability or nonnegotiability of the various types ofunion security.

Yet even when public employment bargaining laws expresslyauthorize particular types of union security, interpretative prob-lems still will arise in states with civil service and teacher tenure actsthat enumerate the grounds for discharge of certain classes ofpublic employees, without mentioning the breach of a union se-curity agreement as a ground. Those interpretative problems alsocan be avoided by provisions in public employment bargaining lawsto the effect that the failure to abide by a union security agreementconstitutes grounds for discharge under the other acts. To avoid afurther conflict with civil service acts, state public employmentbargaining laws should provide that union security agreementsmust be negotiated with the civil service commission in all caseswhere the commission is authorized to promulgate rules governingthe grounds for the discharge of civil service employees.

Until existing public employment bargaining laws areamended to deal with the problems created by union securityagreements, however, the judiciary will be forced to resolve theseproblems. Hopefully, whatever judicial solutions develop will bebased on considerations of public policy, rather than on the mereapplication of mechanical rules of statutory construction.

union security agreements in public employment

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